IMPORTANT POINTS (Majority view)
1. The prayer for reference to a larger Bench, and for reconsideration of the Second and Third Judges cases [(1993) 4 SCC 441, and (1998) 7 SCC 739, respectively], is rejected.
2. The Constitution (Ninety-ninth Amendment) Act, 2014 is declared unconstitutional and void.
3. The National Judicial Appointments Commission Act, 2014, is declared unconstitutional and void.
4. The system of appointment of Judges to the Supreme Court, and Chief Justices and Judges to the High Courts; and transfer of Chief Justices and Judges of High Courts from one High Court, to another, as existing prior to the Constitution (Ninety-ninth Amendment) Act, 2014 (called the "collegium system"), is declared to be operative.
5. To consider introduction of appropriate measures, if any, for an improved working of the "collegium system", list on 3.11.2015.

Headnote:
Constitution of India - Article 145(3) - Sections 7 and 9 - Constitution (Ninety-Ninth Amendment) Act, 2014 - National Judicial Appointment Commission Act, 2014 - Basic feature of the Constitution - Validity of Constitution (Ninety-ninth Amendment) Act, 2014 as also, that of National Judicial Appointments Commission Act, 2014 ? Challenge is on the ground that by virtue of the aforestated amendment and enactment of the Act, basic structure of Constitution of India has been altered and therefore, they should be set aside - mainly submitted for petitioners that all these petitions should be referred to a Bench of Five Judges as per the provisions of Article 145(3) of Constitution of India for the reason that substantial questions of law with regard to interpretation of Constitution of India are involved in these petitions - It has been further submitted that till all these petitions are finally disposed of, by way of an interim relief it should be directed that the Act should not be brought into force and present system with regard to appointment of Judges should be continued ? Held, New scheme damages the basic feature of Constitution under which primacy in appointment of judges has to be with judiciary - Under new scheme such primacy has been given a go-bye - Thus impugned amendment cannot be sustained - All proceedings in initiating a proposal are in writing and are forwarded to the constitutional functionaries - The Chief Minister, the Governor, the Law Minister, PM and the President have opportunity to give their views in the matter of appointment of Chief Justices and Judges of High Courts apart from judges and non-judges involved in the process - The Law Minister, the PM and the President also have opportunity to give their comment on appointment of CJI and Judges of Supreme Court - There is also an opportunity to suggest names before initiation of proposal - There is no bar to an expert feedback from the civil society through constitutional functionaries involved - Thus, there is transparency as well as checks and balances - These considerations do not justify interference with the final initiation of proposal by judiciary or in taking a final view in the matter by the judiciary, consistent with the mandate of the Constitution - new scheme damages the basic feature of the Constitution under which primacy in appointment of judges has to be with the judiciary. Under the new scheme such primacy has been given a go-bye - Thus the impugned amendment cannot be sustained - Order accordingly.

Judgment

Jagdish Singh Khehar, J.

Sl.No.	Contents	Paragraphs	Pages
1.	The Recusal Order	1 - 18	1 – 15
2.	The Reference Order	1 - 101	16 – 169
I	The Challenge	1 - 9	16 – 19
II.	The Background to the Challenge	10 - 19	19 - 61
III.	Motion by the respondents, for the review of the Second and Third Judges cases.	20 - 53	61 – 115
IV.	Objection by the petitioners, to the Motion for review	54 - 59	115 – 124
V.	The Consideration	60 - 100	124 – 168
VI.	Conclusion	101	168 – 169

3.	The Order on Merits	1 - 258	170 – 439
I.	Preface	1 - 4	170 – 171
II.	Petitioners’ Contentions, on Merits	5 - 66	171 - 252
III.	Respondents’ Response on Merits.	67 - 132	253 – 325
IV.	The Debate and the Deliberation	133 - 245	326 - 419
V.	The effect of striking down the impugned constitutional amendment	246 - 253	419 – 436
VI.	Conclusions	254 - 256	436 – 438
VII.	Acknowledgment	257	438 - 439

THE RECUSAL ORDER

1. In this Court one gets used to writing common orders, for orders are written either on behalf of the Bench, or on behalf of the Court. Mostly, dissents are written in the first person. Even though, this is not an order in the nature of a dissent, yet it needs to be written in the first person. While endorsing the opinion expressed by J. Chelameswar, J., adjudicating upon the prayer for my recusal, from hearing the matters in hand, reasons for my continuation on the Bench, also need to be expressed by me. Not for advocating any principle of law, but for laying down certain principles of conduct.

2. This order is in the nature of a prelude – a precursor, to the determination of the main controversy. It has been necessitated, for deciding an objection, about the present composition of the Bench. As already noted above, J. Chelameswar, J. has rendered the decision on the objection. The events which followed the order of J. Chelameswar, J., are also of some significance. In my considered view, they too need to be narrated, for only then, the entire matter can be considered to have been fully expressed, as it ought to be. I also need to record reasons, why my continuation on the reconstituted Bench, was the only course open to me. And therefore, my side of its understanding, dealing with the perception, of the other side of the Bench.

3(i) A three-Judge Bench was originally constituted for hearing these matters. The Bench comprised of Anil R. Dave, J. Chelameswar and Madan B. Lokur, JJ.. At that juncture, Anil R. Dave, J. was a part of the 1+2 collegium, as also, the 1+4 collegium. The above combination heard the matter, on its first listing on 11.3.2015. Notice returnable for 17.3.2015 was issued on the first date of hearing. Simultaneously, hearing in Y. Krishnan v. Union of India and others, Writ Petition (MD) No.69 of 2015, pending before the High Court of Madras (at its Madurai Bench), wherein the same issues were being considered as the ones raised in the bunch of cases in hand, was stayed till further orders.

(ii) On the following date, i.e., 17.3.2015 Mr. Fali S. Nariman, Senior Advocate, in Supreme Court Advocates-on-Record Association v. Union of India (Writ Petition (C) No.13 of 2015), Mr. Anil B. Divan, Senior Advocate, in Bar Association of India v. Union of India (Writ Petition (C) No.108 of 2015), Mr. Prashant Bhushan, Advocate, in Centre for Public Interest Litigation v. Union of India (Writ Petition (C) No.83 of 2015) and Mr. Santosh Paul, Advocate, in Change India v. Union of India (Writ Petition (C) No.70 of 2015), representing the petitioners were heard. Mr. Mukul Rohatgi, Attorney General for India, advanced submissions in response. The matter was shown as part-

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2015 Supreme(SC) 1019

Cases Referred (243)