IN THE SUPREME COURT OF INDIA
CIVIL WRIT JURISDICTION
WRIT PETITION (c) NO.13 OF 2015

Supreme Court Advocates on Record Association

… Petitioner

v.

Union of India

... Respondent

WRITTEN SUBMISSIONS ON BEHALF OF THE UNION OF INDIA
DATED 08.06.2015

PART I

 Contents
A. PREFACE ................................................................................... 1
B. PARLIAMENT’S POWER TO AMEND THE CONSTITUTION AND SCOPE OF
JUDICIAL REVIEW .............................................................................. 6
I.

The power of amendment under Article 368 is plenary subject to the sole

restriction that no constitutional amendment can violate the basic structure of
the Constitution ............................................................................. 6
II. There is a presumption of constitutionality in the case of constitutional
amendments ................................................................................. 7
III.

Parliament is best equipped to assess the needs of the people and the

changing times ............................................................................. 11
IV.

The scope of judicial review does not extend to reviewing the wisdom of

the Parliament or the substance of Parliamentary debates ........................ 14
V. The Statement of Objects and Reasons cannot be dispositive of the validity
of a constitutional amendment ......................................................... 19
VI.

In any event, circumstances with respect to appointments to the higher

judiciary warranted the need for enactment of the 99thAmendment ............. 21
C. BASIC STRUCTURE DOCTRINE ........................................................ 35
I.

What is the basic structure doctrine? ............................................. 35

II. Merely affecting or impinging upon an article embodying a feature that is
part of the basic structure is not sufficient to declare an amendment
unconstitutional ........................................................................... 37
III.

Whether a constitutional amendment abrogates the basic structure is to be

assessed on the basis of features as culled out from the text of the original
enactment of the Constitution .......................................................... 41

 A. PREFACE
1. In the instant case, the lead petitioners the Supreme Court Advocateson-Record Association, other petitioners and several interveners have
submitted

that

(hereinafter

the

“99th

Constitution

(99th

Amendment”)

and

Amendment)
the

Act,

National

2014

Judicial

Appointments Commission Act, 2014 (hereinafter “NJAC Act”) are
violative

of

the

independence

of

the

judiciary

and

hence

unconstitutional for abrogating the basic structure of the Constitution.
The key basis for this argument is that the 99th Amendment and NJAC
Act take away from the primacy of the judiciary in the matter of
appointments, held in Supreme Court Advocates-on-Record Association
v. Union of India (1993) 4 SCC 441 (hereinafter “the Second Judges‘
case‖) and clarified in In Re: Presidential Reference (1998) 7 SCC 739
(hereinafter “the Third Judges‘ case‖) as a constitutional requirement
for all appointments to the higher judiciary. The sequitur of this
proposition is the submission that the presence of non-judicial
members, as well as their power to prevent a candidate recommended
by the judicial members of the NJAC from being recommended to the
President for appointment affect the independence of the judiciary
and are hence unconstitutional.
2. In substance this case can thus be distilled into two questions: first,
whether not having an absolute majority of judges (3 out of 6 as
opposed to 3 out of 5) on the NJAC, and secondly, whether not
1

 allowing the judiciary to insist on a candidate of its choice (owing to
the requirement of special majority, i.e. 5 out of 6 positive votes in
favour of a candidate recommended for appointment) are violative of
the independence of the judiciary and consequently abrogate the basic
structure of the Constitution.
3. In order to meet these contentions, it is necessary to advance certain
key legal propositions pertaining to the power of the judiciary to strike
down constitutional amendments, the scope of the basic structure
doctrine, the understanding of the independence of the judiciary in
theory and in our Constitutional framework, the idea of checks and
balances as a necessary corollary of separation of powers, the
comparative law in other jurisdictions pertaining to appointment of
judges and the constitutional imperative for the Supreme Court to
consider all provisions of the Constitution and values forming part of
the basic structure holistically.
4. The following propositions will thus be advanced:
a. Parliament‟s power to amend the Constitution is plenary, subject
to only one restriction, i.e. it cannot abrogate the basic structure
of the Constitution, which has to be culled out from specific
articles of the Constitution as originally enacted.
b. The

99th

Amendment

is

entitled

to

a

presumption

of

constitutionality. The burden is on the petitioners to rebut such

2

 presumption of the basis of concrete facts to be brought on record
and not surmises and speculation.
c. Parliament is best equipped to assess the needs of the people and
the changing times and the wisdom of Parliament is not subject to
judicial review.
d. Independence of

the judiciary,

checks

and balances

and

democracy are all part of the basic structure of the Constitution
which must be considered holistically.
e. The Second Judges‘ Case and The Third Judges‘ Case require
reconsideration (see Note on Reference on behalf of Union of
India).
f. If not reconsidered, then the aforementioned cases have no
relevance to the assessment of the constitutionality of the 99 th
Amendment since the basis for these judgments has been
removed, which Parliament is competent to do.
g. In any event, the Second Judges‘ Case/ Third Judges‘ Case,
evolved a new system of a collegium-based appointment in
response to particular exigencies at that time, a system which did
not exist in the Constitution.
h. Primacy of the judiciary in the matter of appointment of judges to
the higher judiciary is not a basic feature of the Constitution and
has no necessary connection with judicial independence.

3

 i. Assuming that there is primacy, even under the new dispensation,
no appointment will be made unless at least 2 out of 3 judges
concur in the same (see conclusions 5, 6 and 7 of the Second
Judges‘ Case).
5. Each specific contention made by the petitioners will be rebutted by
applying these legal propositions mentioned above to the 99th
Amendment and NJAC Act on the whole, as well as to the specific
provisions that have been challenged. In particular the following points
will be advanced:
99th Amendment
a. Composition- why is the NJAC a body of six members
b. Role of eminent persons
c. Role of executive/ Law Minister
d. The pre-eminent position of the judiciary in the NJAC and how
NJAC dilutes the role of the executive
The NJAC Act:
e. Rationale for special majority/ super majority requirement,
loosely referred to as veto by petitioners
f. Procedure of enactment
g. No delegation of essential legislative function or uncanalised
power to make regulations
4

 6. On this basis, it will be demonstrated that the 99th Amendment and
NJAC

Act

are

entirely

consonant

with

the

principle

of

the

independence of the judiciary, strengthen its foundations and do not in
any manner abrogate the basic structure of the Constitution or any
other provision of law as contended by the petitioners. Hence their
constitutionality must be upheld by this Hon‟ble Court.

5

 B. PARLIAMENT’S POWER TO AMEND THE CONSTITUTION AND SCOPE OF
JUDICIAL REVIEW
I.

The power of amendment under Article 368 is plenary subject to the
sole restriction that no constitutional amendment can violate the
basic structure of the Constitution
7. An amendment to the Constitution, unlike an ordinary legislation, can
only be tested on the touchstone of the basic structure. Consequently
the heads available to challenge an ordinary legislation i.e. lack of
legislative competence, and violation of fundamental rights cannot be
invoked in the case of a constitutional amendment. Parliamentary
power to amend the Constitution under Article 368 is plenary subject
to only one limitation: such amendment cannot abrogate the basic
structure or the basic features of the Constitution. This is a proposition
well-established in Kesavananda Bharati v. State of Kerala (1973) 4
SCC 225 (hereinafter “Kesavananda Bharati‖) and accepted in a
catena of decisions thereafter.
8. A Constitution Bench of this Hon‟ble Court in Kuldip Nayar v. Union of
India (2006) 7 SCC 1 explained the difference in the grounds for
challenging an ordinary legislation and a constitutional amendment as
follows (at p. 67):
“106.The doctrine of ―basic feature‖ in the context of our
Constitution, thus, does not apply to ordinary legislation which has
only a dual criteria to meet, namely:
(i) it should relate to a matter within its competence;

6

 (ii) it should not be void under Article 13 as being an unreasonable
restriction on a fundamental right or as being repugnant to an
express constitutional prohibition.‖
107. The basic structure theory imposes limitation on the power of
Parliament to amend the Constitution. An amendment to the
Constitution under Article 368 could be challenged on the ground of
violation of the basic structure of the Constitution. An ordinary
legislation cannot be so challenged. The challenge to a law made,
within its legislative competence, by Parliament on the ground of
violation of the basic structure of the Constitution is thus not
available to the petitioners.‖

Hence, it is humbly submitted that the 99th Amendment can only be
challenged on the touchstone of the basic structure. The violation
complained of thus has to be relatable to a basic feature of the
Constitution.
II.

There

is

a

presumption

of

constitutionality

in

the

case

of

constitutional amendments
9. Presumption of constitutionality for legislative enactments has been a
long accepted principle in our constitutional jurisprudence. A
Constitution Bench of this Hon‟ble Court in Charanjit Lal Chowdhury
v. Union of India AIR 1951 SC 41, speaking through Fazl Ali J. stated
as follows:
―11. Prima facie, the argument appears to be a plausible one, but it
requires a careful examination, and, while examining it, two
principles have to be borne in mind: (1) that a law may be
constitutional even though it relates to a single individual, in those
cases where on account of some special circumstances or reasons
applicable to him and not applicable to others, that single individual
may be treated as a class by himself; (2) that it is the accepted
doctrine of the American Courts, which I consider to be well-founded
on principle, that the presumption is always in favour of the
constitutionality of an enactment, and the burden is upon him who
7

 attacks it to show that there has been a clear transgression of the
constitutional principles. A clear enunciation of this latter doctrine
is to be found in Middleton v. Texas Power and Light Company [248
US 152, 157] in which the relevant passage runs as follows:
―It must be presumed that a legislature understands and correctly
appreciates the need of its own people, that its laws are directed to
problems made manifest by experience and that its discriminations
are based upon adequate grounds.‖

10. Thereafter, in Ram Krishna Dalmia v. Justice S.R. Tendolkar AIR
1958 SC 538 the law on the subject was summarised as follows by Das
CJI:
―11.....The decisions of this Court further establish—
(a) that a law may be constitutional even though it relates to a
single individual if, on account of some special circumstances or
reasons applicable to him and not applicable to others, that single
individual may be treated as a class by himself;
(b) that there is always a presumption in favour of the
constitutionality of an enactment and the burden is upon him who
attacks it to show that there has been a clear transgression of the
constitutional principles;
(c) that it must be presumed that the legislature understands and
correctly appreciates the need of its own people, that its laws are
directed to problems made manifest by experience and that its
discriminations are based on adequate grounds;
(d) that the legislature is free to recognise degrees of harm and may
confine its restrictions to those cases where the need is deemed to
be the clearest;
(e) that in order to sustain the presumption of constitutionality the
court may take into consideration matters of common knowledge,
matters of common report, the history of the times and may assume
every state of facts which can be conceived existing at the time of
legislation; and
(f) that while good faith and knowledge of the existing conditions on
the part of a legislature are to be presumed, if there is nothing on
the face of the law or the surrounding circumstances brought to the
notice of the court on which the classification may reasonably be
8

 regarded as based, the presumption of constitutionality cannot be
carried to the extent of always holding that there must be some
undisclosed and un-known reasons for subjecting certain individuals
or corporations to hostile or discriminating legislation.
The above principles will have to be constantly borne in mind by the
court when it is called upon to adjudge the constitutionality of any
particular law attacked as discriminatory and violative of the equal
protection of the laws.‖

11. In Kesavananda Bharati, Hegde and Mukherjea JJ. agreed that the
aforesaid presumption will equally apply to constitutional amendments
and stated that (at p. 484):
―661. The presumption of the constitutional validity of a statute
will also apply to constitutional amendments.‖

12. Further, it is humbly submitted that the burden on he who attacks
the constitutionality of the statute cannot simply be met by
apprehensions

of

unconstitutionality.

The

presumption

of

constitutionality can only be rebutted on the basis of concrete facts. In
B Banerjee v. Anita Pan, (1975) 1 SCC 166, it was held by Krishna
Iyer J. (at p. 175):
“12. Law is a social science and constitutionality turns not on
abstract principles or rigid legal canons but concrete realities and
given conditions; for the rule of law stems from the rule of life. We
emphasize this facet of sociological jurisprudence only because the
High Court has struck down Section 13 of the Amendment Act on
surmises, possibilities and maybes rather than on study of actualities
and proof of the nature, number and age of pending litigations
caught in the net of the retrospective clause. Judges act not by
hunch but on hard facts properly brought on record and sufficiently
strong to rebuff the initial presumption of constitutionality of
legislation.”

9

 13. In V.C. Shukla v. State (Delhi Administration) 1980 Supp SCC 249,
this Hon‟ble Court held per Fazal Ali J. (at p. 259):
“11. ….this Court has laid down that presumption is always in favour
of the constitutionality of an enactment and the onus lies upon the
person who attacks the statute to show that there has been an
infraction of the constitutional concept of equality. It has also been
held that in order to sustain the presumption of constitutionality,
the court is entitled to take into consideration matters of common
knowledge, common report, the history of the times and all other
facts which may be existing at the time of the legislation. Similarly,
it cannot be presumed that the administration of a particular law
would be done with an ―evil eye and an unequal hand‖. Finally, any
person invoking Article 14 of the Constitution must show that there
has been discrimination against a person who is similarly situate or
equally circumstanced….”

14. Again in Amrit Banaspati Co. v. Union of India (1995) 3 SCC 335, it
was held per Paripoornan J. (at p. 340):
―6. It is settled law that the allegations regarding the violation of
constitutional provision should be specific, clear and unambiguous
and should give relevant particulars, and the burden is on the person
who impeaches the law as violative of constitutional guarantee to
show that the particular provision is infirm for all or any of the
reasons stated by him. In the recent decision of this Court Gauri
Shanker v.Union of India [(1994) 6 SCC 349] to which both of us were
parties, it was reiterated that—
(a) there is always a presumption in favour of the constitutionality
of an enactment and the burden is upon him who attacks it to show
that there has been a clear transgression of the constitutional
principles;
(b) it must be presumed that the legislature understands and
correctly appreciates the need of its own people, that its laws are
directed to problems made manifest by experience and that its
discriminations are based on adequate grounds;
(c) in order to sustain the presumption of constitutionality the court
may take into consideration matters of common knowledge, matters
of common report, the history of the times and may assume every
state of facts which can be conceived existing at the time of
legislation.‖

10

 15. The standard which has to be met for constitutionality of a law to be
upheld was summarised in Government of Andhra Pradesh v. P.
Laxmi Devi (2008) 4 SCC 720 (at p. 747):

“66. As observed by the Privy Council in Shell Co. of
Australia v. Federal Commr. of Taxation [1931 AC 275 : 1930 All ER
Rep 671 (PC)] : (All ER p. 680 G-H)
‗… unless it becomes clear beyond reasonable doubt that the
legislation in question transgresses the limits laid down by the
organic law of the Constitution, it must be allowed to stand as the
true expression of the national will.‘‖
“67. Hence if two views are possible, one making the provision in
the statute constitutional, and the other making it unconstitutional,
the former should be preferred vide Kedar Nath Singh v. State of
Bihar [AIR 1962 SC 955]. Also, if it is necessary to uphold the
constitutionality of a statute to construe its general words narrowly
or widely, the court should do so vide G.P. Singh's Principles of
Statutory Interpretation, 9th Edn., 2004, p. 497.”

16. On this basis it is humbly submitted that the aforesaid presumption of
constitutionality must be applied in the instant case. Consequently, the
burden of proof lies on the petitioners to demonstrate that the 99 th
Amendment abrogates the basic structure of the Constitution. This
burden

cannot

be

discharged

by

speculation,

surmises

and

apprehensions but “hard facts” which rebut the said presumption
beyond reasonable doubt.
III.

Parliament is best equipped to assess the needs of the people and the
changing times
17. A Constitution Bench of this Hon‟ble Court has in Mohd. Hanif
Quareshi v. State of Bihar AIR 1958 SC 731, followed the dicta in

11

 Middleton v. Texas Power & Lighting (249 US 152 (1919)) and held as
follows (at pp. 740-741):
―15. … The courts, it is accepted, must presume that the legislature
understands and correctly appreciates the needs of its own people,
that its laws are directed to problems made manifest by experience
and that its discriminations are based on adequate grounds. It must
be borne in mind that the legislature is free to recognise degrees of
harm and may confine its restrictions to those cases where the need
is deemed to be the clearest and finally that in order to sustain the
presumption of constitutionality the court may take into
consideration matters of common knowledge, matters of common
report, the history of the times and may assume every state of facts
which can be conceived existing at the time of legislation.‖
[Emphasis supplied]

18. Thus Parliament is best positioned to assess the needs of the changing
times. In this regard, it may be noted that this Court in Kesavananda
Bharati held as follows per Hegde and Mukherjea JJ. (at p. 473):
"634. Every Constitution is expected to endure for a long time.
Therefore, it must necessarily be elastic. It is not possible to place
the society in a straitjacket. The society grows, its requirements
change. The Constitution and the laws may have to be changed to
suit those needs. No single generation can bind the course of the
generation to come. Hence every Constitution, wisely drawn up,
provides for its own amendment."

19. Similarly, in State of W.B. v. Anwar Ali Sarkar 1952 SCR 284 it was
reiterated by Vivian Bose J. that:
"90…The Constitution must, in my judgment, be left elastic enough
to meet from time to time the altering conditions of a changing
world with its shifting emphasis and differing needs…"

20. In this context, a very important consideration for the legislature
would be that of a law being rendered unreasonable by passage of
12

 time, a position of law acknowledged by this Hon'ble Court in a catena
of decisions. In State of M.P. v. Bhopal Sugar Industries Ltd. AIR
1964 SC 1179 it was observed as follows:
“6.…Differential treatment arising out of the application of the laws
so continued in different regions of the same reorganised State, did
not, therefore immediately attract the clause of the Constitution
prohibiting discrimination. But by the passage of time,
considerations of necessity and expediency would be obliterated, and
the grounds which justified classification of geographical regions for
historical reasons may cease to be valid. A purely temporary
provision which because of compelling forces justified differential
treatment when the Reorganisation Act was enacted cannot
obviously be permitted to assume permanency, so as to perpetuate
that treatment without a rational basis to support it after the initial
expediency and necessity have disappeared.‖

21. The position of the law on this aspect came to be summarised after
relying on the aforesaid decisions in Malpe Vishwanath Acharya v.
State of Maharashtra (1998) 2 SCC 1 as follows (at p. 12):
"15. The aforesaid decisions clearly recognise and establish that a
statute which when enacted was justified may, with the passage of
time, become arbitrary and unreasonable."

22. Hence it is submitted that if a law becomes unreasonable over a period
of time, the legislature in its wisdom can change it in order to make it
reasonable. The same principle equally applies to the Constitution
which may also have to be changed over a period of time.
23. The sequitur of this analysis in the instant case is that there were
„compelling forces‟ in terms of executive over-reach in appointments,
starting with the supersession of judges in 1973, mass transfer of
judges in the Emergency in 1976, a second supersession in 1977 and
13

 continuing itinerant interference over the 1980s, which provided the
context for the creation of the judicial collegium and vesting primacy
in the judiciary in the matter of appointments in the Second Judges’
case. A system devised to address particular concerns cannot assume
permanence for all times to come. This is especially because the
collegium having operated for over two decades has meant that
different issues and concerns have arisen, which Parliament has now in
its wisdom decided to address. This point will be advanced in detail
while dealing with the Second Judges’ case and the question of
primacy.
IV.

The scope of judicial review does not extend to reviewing the wisdom
of the Parliament or the substance of Parliamentary debates
24. It is respectfully submitted that the scope of judicial review does not
extend to reviewing the wisdom of the Parliament or the substance of
Parliamentary debates.
25. In Jalan Trading Co. (P) Ltd. v. Mill Mazdoor Sabha AIR 1967 SC 691
this Court explained that invalidity of a law cannot be determined by
finding faults in the scheme adopted by the legislature to achieve its
objective:
27. …… With a view to secure a particular object a scheme may be
selected by the Legislature, wisdom whereof may be open to debate;
it may even be demonstrated that the scheme is not the best in the
circumstances and the choice of the legislature may be shown to be
erroneous, but unless the enactment fails to satisfy the dual test of
intelligible classification and rationality of the relation with the
object of the law, it will not be subject to judicial interference
under Article 14. Invalidity of legislation is not established by merely
14

 finding faults with the scheme adopted by the Legislature to achieve
the purpose it has in view ….‖

26. In the context of constitutional amendments, this Hon‟ble Court, in
Kesavananda Bharati held per Sikri CJI (at p. 365):
“288. It is of course for Parliament to decide whether an
amendment is necessary. The Courts will not be concerned with the
wisdom of the amendment.‖

27. Further, Khanna J. held in Kesavananda Bharati (at p. 821):
―1535. In exercising the power of judicial review, the courts cannot
be oblivious of the practical needs of the Government. The door has
to be left open for trial and error. Constitutional law like other
mortal contrivances has to take some chances. Opportunity must be
allowed for vindicating reasonable belief by experience. Judicial
review is not intended to create what is sometimes called judicial
oligarchy, the aristocracy of the robe, covert legislation, or Judgemade law. The proper forum to fight for the wise use of the
legislative authority is that of public opinion and legislative
assemblies. Such contest cannot be transferred to the judicial
arena.‖ [Emphasis supplied]

28. Again, in Sanjeev Coke Manufacturing Company v. M/s. Bharat
Coking Coal Limited (1983) 1 SCC 147, this Hon‟ble Court was
categorical about matters which fall beyond the scope of judicial
review. It held through Chinnappa Reddy J. (at p. 170):
“20. The learned counsel submitted that Article 39(b) would be
attracted if the industry as a whole was nationalised and not if only
a part of the industry was nationalised. According to him, all the
coke oven plants wherever they existed had to be nationalised and
no privately owned coke oven plants could be allowed to be set up in
the future, if Article 39(b) was to be applied. We are unable to see
any force in this submission. The distribution between public,
private and joint sectors and the extent and range of any scheme of
nationalisation are essentially matters of state policy which are
15

 inherently inappropriate subjects for judicial review. Scales of
justice are just not designed to weigh competing social and economic
factors. In such matters legislative wisdom must prevail and judicial
review must abstain.”

29. More recently, in Karnataka Bank Ltd. v. State of A.P.(2008) 2 SCC
254, it was held per Sudershan Reddy J. (at p. 262):
“19.The rules that guide the constitutional courts in discharging
their solemn duty to declare laws passed by a legislature
unconstitutional are well known. There is always a presumption in
favour of constitutionality, and a law will not be declared
unconstitutional unless the case is so clear as to be free from doubt;
―to doubt the constitutionality of a law is to resolve it in favour of
its validity‖. Where the validity of a statute is questioned and there
are two interpretations, one of which would make the law valid and
the other void, the former must be preferred and the validity of law
upheld. In pronouncing on the constitutional validity of a statute,
the court is not concerned with the wisdom or unwisdom, the justice
or injustice of the law. If that which is passed into law is within the
scope of the power conferred on a legislature and violates no
restrictions on that power, the law must be upheld whatever a court
may think of it. ..‖

30. The petitioners have also contended that Parliament, while passing the
bills establishing the National Judicial Appointments Commission
(hereinafter “NJAC”) did not take into account even once the proposal
made by the National Commission to Review the Working of the
Constitution (hereinafter, “NCRWC”) headed by former Chief Justice of
India, Justice M.N. Venkatachaliah. The NCRWC proposed a commission
which contained a majority of judges. It is humbly submitted that
validity of parliamentary proceedings cannot be the subject of judicial
review. This is clearly provided for under Article 122 of the
Constitution.

16

 31. Further, as a factual matter, the petitioners are incorrect. The views
of the NCRWC as well as several other views on reforming the judicial
appointments process were taken into consideration by the Parliament
for the enactment of the 99th Amendment. The same is evident from
the speech made by Minister of Law and Justice, Mr. Ravi Shankar
Prasad in the Rajya Sabha on the Constitution (One Hundred and
Twenty-First Amendment) Bill, 2014:
“Sir, this whole re-writing of the Constitution and the resultant
collegium system have been there for twenty years. But is the
Government today making the only effort? No. Let me just tell the
House very quickly and very briefly about the past efforts. There was
the Constitution (Sixty Seventh Amendment) Bill, 1990. The Bill
lapsed. Then there was the Constitution (Eighty Second Amendment)
Bill, 1997. It could not be passed. Then there was the National
Judicial Commission, 1998.Thereafter, there was the Constitution
(Ninety Ninth Amendment) Bill, 2003 when Mr. Arun Jaitley, the
present Leader of the House, wash on. Law Minister. Then there was
the National Commission to Review the Working of the Constitution,
2003. Then there was the Second Administrative Reform Commission,
2007. And many other efforts were made. Then there was the Law
Commission Report.”

Mr. Ravi Shankar Prasad also noted:
“The Government had the widest consultations possible, and just to
allay the apprehension that something is being done in a hurry, I
must say, no, it has been going on for the last 20 years. The former
Chief Justice of India, Mr. Venkatachaliah who headed the National
Commission on review of the working of the Constitution also
recommended that. He has held the wide consultations. Similarly,
the Law Commission had the widest consultations. Many other
political processes also gave their feedback. Therefore, it is nothing
new. Therefore, this Government has taken cognizance of the efforts
of 20 years by eminent jurists, leaders of all political parties, who
have in principle stated that.”

32. Mr. Sukhendu Sekhar Roy (MP) also said in the Rajya Sabha:

17

 “Sir, even the National Commission to Review the Working of the
Indian Constitution said, ―it would be worthwhile to have a
participatory mode with the participation of both the Executive and
the Judiciary in making such recommendations. The Commission
proposes the composition of the collegium which gives due
importance to and provides for the effective participation of both
the Executive and the judicial wings of the State as an integrated
scheme for the machinery for appointment of judges. The
Commission, accordingly, recommends the establishment of a
National Judicial Commission under the Constitution‖. Sir, this
recommendation was of 2002 and we are in 2014 now, and still
discussing it.”

33. The views of the NCRWC were also taken note of in the Lok Sabha. In
the Lok Sabha debate on the Constitution (One Hundred and TwentyFirst Amendment) Bill, 2014 of 12th August 2014, Mr. Ravi Shankar
Prasad noted:
“Madam Speaker, Justice Venkatachaliah, a distinguished Chief
Justice, was heading the Constitution Review Commission formed by
the Government headed by Shri Vajpayee. I would like to assure my
friends from the Opposition that we in the BJP have been supportive
of the National Judicial Commission right from day one. There have
been views of some political parties to go to pre-1993 position but
even during Vajpayee Government our commitment was that. Even
in 2009 our commitment was that. Even during 2014 LokSabha
election our manifesto clearly stated that we wanted a National
Judicial Commission. Therefore, we have been quite consistent as
far as this is concerned.‖
―The National Commission to Review the Constitution of Justice
Venkatachaliah in 2002 proposed 5 members. The National Judicial
Commission – 98th Amendment Bill, 2003 – proposed 7 members, the
Administrative Reforms Commission headed by Veerappa Moilyji
proposed 8 Members headed by the Vice-President, the Prime
Minister, the Speaker, the CJI, the Law Minister and the two leaders
of Opposition. And the last year‘s Bill proposed 6 members.
Therefore, taking into account all these developments, we have kept
6 members. Therefore, that has to be considered. Two eminent
persons are to be appointed by the Prime Minister, by the Chief
Justice of India, the Leader of Opposition, the Leader of the largest
Political Party in Opposition. Therefore, high-ranked people are
going to appoint two eminent persons. I am sure, the two eminent
persons will be the best available and in the collective judgement
18

 they will take a call. Regulations also give that right under the
Constitution. It can also be framed. But as a Parliamentarian, as a
Law Minister, I think, I will trust the collective judgement of the
three eminent persons more.”
The text of the debates of the Rajya Sabha and Lok Sabha may be found
in Annexures I and II respectively. It is thus clear that Parliament in its
wisdom considered previous reform proposals and passed the 99 th
Amendment being fully apprised of the facts and the changing needs of
the time.
V.

The Statement of Objects and Reasons cannot be dispositive of the
validity of a constitutional amendment
34. The Petitioners have further contended that the impugned amendment
is

bad

on

the

ground

that

there

was

no

proper

consultation/consideration by the Parliament, and that proper facts
were not put on record before deliberating and passing it, which is
explicit from the Statement of Objects and Reasons. The above
contention of the Petitioners is not sustainable in law and deserves to
be rejected. This Court has consistently held that Statement of Objects
and Reasons cannot be regarded as a benchmark for testing the validity
of an amendment. Statement of Objects and Reasons can only be used
as external aids in interpreting the provisions of the statute.
35. The effect of absence of any reasoning for an enactment in its
Statement of Objects and Reasons was dealt by the court in Kuldip
Nayar v. Union of India (2006) 7 SCC 1 (at p. 97):

19

 “256. Another submission urged is that the Statement of Objects and
Reasons for the Bill which brought about the amendment itself shows
the absence of justification for doing away with the will of
Parliament as earlier reflected in original Section 3 of the RP Act,
1951, which was in consonance with the scheme of the Constitution.
The Statement of Objects and Reasons for the Bill mentioned that ―a
precise definition for ‗ordinarily resident‘ was very difficult‖ and
that after the matter was ―examined in depth by the Government‖ it
had been decided to do away with the requirement of residence in a
particular State or Union Territory for contesting election to the
Council of States from that State or Union Territory, and further
that there were numerous instances where persons who were not
normally residing in the State had got themselves registered as
voters in such State simply to contest the elections to the Council of
States.
258. It has been argued that the reasons given in the Statement of
Objects and Reasons for the Amendment Act do not provide any
rational justification for the impugned amendment…
261. The petitioners also lament that the well-considered view
expressed by an eminent body like the National Commission on
Working of the Constitution has been unreasonably brushed aside.
The Commission in para 5.11.5 of its report did express its view that
the parliamentary legislation that had been initiated seeking to do
away with the domiciliary qualification for being chosen as a
representative of any State or Union Territory in the Council of
States would affect ―the basic federal character of the Council of
States‖ and that in order to maintain the said basic federal
character of the said House, ―the domiciliary requirement for
eligibility to contest elections to the Rajya Sabha from the State
concerned is essential‖. The Union of India has stated that it
respectfully differs from the views expressed by the Commission.
280. As regards the criticism that the reasons given in the counteraffidavit of the Union of India are distinct from those set out in the
Statement of Objects and Reasons of the Bill that became the
impugned law, we may only state that the Statement of Objects and
Reasons of a proposed legislation is not the compendium of all
possible reasons or justification. We do not find any contradiction in
the stand taken by the Union of India in these proceedings in relation
to the Statement of Objects and Reasons of the impugned
amendment.‖

36. In Bakhtawar Trust v. M.D. Narayan (2003) 5 SCC 298, this Court
observed per Khare CJI (at p. 313):

20

 ―31. It was then urged on behalf of the respondents that a perusal of
the Statement of Objects and Reasons for the Validation Act shows
that the intention of the legislature was rather to render the
decision of the High Court infructuous than to correct any infirmity
in the legal position. For this, reliance was sought to be placed on
the Statement of Objects and Reasons of the impugned enactment. It
is well settled by the decisions of this Court that when a validity of a
particular statute is brought into question, a limited reference, but
not reliance, may be made to the Statement of Objects and Reasons.
The Statement of Objects and Reasons may, therefore, be employed
for the purposes of comprehending the factual background, the prior
state of legal affairs, the surrounding circumstances in respect of
the statute and the evil which the statute has sought to remedy. It is
manifest that the Statement of Objects and Reasons cannot,
therefore, be the exclusive footing upon which a statute is made a
nullity through the decision of a court of law.‖

VI.

In any event, circumstances with respect to appointments to the
higher

judiciary

warranted

the

need

for

enactment

of

the

99thAmendment
37. It is humbly submitted that the 99th Amendment is a response to the
need for a change in the process of appointing judges to the higher
judiciary. The need for a new appointments system manifested itself in
the criticisms of the collegium system of appointment of judges.
Criticisms of the collegium system have been made by eminent jurists
and former judges of this Hon‟ble Court. The Late Justice VR Krishna
Iyer has said:
“Another great deficiency is that a collegium that is untrained in the
task, selects judges in secret and bizarre fashion. There could be
room for nepotism, communalism and favouritism in the absence of
guidelines. The selection process excludes the Executive. Nowhere in
the world do we have judges alone selecting other judges. The
collegium is a disaster: the P.D. Dinakaran episode is an example.‖
(―The Syndrome of Judicial Arrears, The Hindu, December 2, 2009)

21

 38. Justice AP Shah, Retd. Chief Justice of the Delhi High Court voiced the
same fears about the functioning of the Collegium in a speech he
delivered:
“The new dispensation of appointments and transfers has been
criticized by the Bar. Mr. T.R Andhyarujina wrote (―Judicial
Accountability‖: India‘s methods and experience, Judges and Judicial
Accountability, edited by Cyrus Das and K. Chandra, published by
Universal Law Co. Pvt. Ltd) that a Judiciary which assumes complete
control over its own composition would have a conformist or a club
like attitude. Judges tend to find virtues in others who display the
same outlook. It is most unlikely that a Denning or a Kirby, or Boar
Laskin or a Krishna Iyer would be appointed under this system. A
Collegium which decides the matter in secrecy lacks transparency
and is likely to be considered a group or faction. Therefore,
prejudice and favour of one or the other member of the Collegium
for an incumbent cannot be ruled out.‖ (Mr. Justice AjitPrakash
Shah, Judges‘ Appointments and Accountability, (2012) 2 LW (JS) 21,
28)

39. Justice Ruma Pal, who herself served on the Collegium in her time as a
Judge of the Supreme Court of India, criticised the process in a speech
as follows:
―...the very secrecy of the process leads to an inadequate input of
information as to the abilities and suitability of a possible candidate
for appointment as a judge. A chance remark, a rumour or even
third-hand information may be sufficient to damn a judge‘s
prospects. Contrariwise a personal friendship or unspoken obligation
may colour a recommendation. Consensus within the Collegiums is
sometimes resolved through a trade-off resulting in dubious
appointments with disastrous consequences for the litigants and the
credibility of the judicial system. Besides, institutional
independence has also been compromised by growing sycophancy and
‗lobbying‘ within the system.‖ (Ruma Pal J., An Independent
Judiciary, 5th VM Tarkunde Lecture, 5th November, 2011)
It is humbly submitted that these criticisms as well as several others by
eminent persons demonstrate the need for changing the collegium

22

 system and introducing a new system for appointment of judges to the
higher judiciary.
40. It is also submitted that the 99th Amendment is not the first attempt at
creating an independent commission for appointments to the higher
judiciary. As already contended, Parliament in its wisdom considered
various previous reform proposals, such as the NCRWC Report and the
Report of the Second Administrative Reforms Commission, 2007 while
passing the 99th Amendment, as is evident from the texts of the
debates of the Lok Sabha and Rajya Sabha on the Constitution (121 st
Amendment) Bill, 2014. Thus, it cannot be contended that the 99 th
Amendment has been passed without proper consultation by the
Parliament.
41. The idea of an independent appointments commission, by whatever
name called, was mooted by Bhagwati J. (as he then was) in SP Gupta
v. Union of India 1981 Supp SCC 87 (hereinafter “the First Judges’
case”) (at p. 231):
“31. …We would rather suggest that there must be a collegium to
make recommendation to the President in regard to appointment of
a Supreme Court or High Court Judge. The recommending authority
should be more broad based and there should be consultation with
wider interests. If the collegium is composed of persons who are
expected to have knowledge of the persons who may be fit for
appointment on the Bench and of qualities required for appointment
and this last requirement is absolutely essential — it would go a long
way towards securing the right kind of Judges, who would be truly
independent in the sense we have indicated above and who would
invest the judicial process with significance and meaning for the
deprived and exploited sections of humanity. We may point out that
even countries like Australia and New Zealand have veered round to
the view that there should be a Judicial Commission for appointment
of the higher judiciary. As recently as July 1977 the Chief Justice of
23

 Australia publicly stated that the time had come for such a
commission to be appointed in Australia. So also in New Zealand, the
Royal Commission on the Courts chaired by Mr Justice Beattle, who
has now become the Governor-General of New Zealand,
recommended that a Judicial Commission should consider all judicial
appointments including appointments of High Court Judges. This is a
matter which may well receive serious attention of the Government
of India.‖

42. This matter also received due consideration in Subhash Sharma v.
Union of India 1991 Supp (1) SCC 574 (at p. 599):
“50. We are aware of the position that the setting up of the
National Judicial Commission through a Constitutional Amendment is
in contemplation. In the event of the amendment being carried and a
National Judicial Commission being set up, the correctness of the
ratio in S.P. Gupta case [1981 Supp SCC 87: (1982) 2 SCR 365] of the
status of the Chief Justice of India may not be necessary to be
examined in view of the fact that by the amendment the Chief
Justice of India would become the Chairman of the Commission…”
Evidently, a broad-based consultative mechanism was in contemplation
for a considerable period of time. The establishment of an
appointments commission, consisting of members of other branches of
government as well as independent members, was not viewed as a
dilution of the independence of the judiciary.
43. It is humbly submitted that the petitioners have themselves argued in
favour of the model of an appointment commission along the lines
proposed by the NCRWC Report. The National Judicial Commission
proposed by the NCRWC Report was to consist of the Chief Justice of
India (as the Chairperson), and two senior most judges of the Supreme
Court, the Union Minister for Law and Justice and one eminent person

24

 (nominated by the President after consulting the Chief Justice of India)
as members.
44. Several

other

proposals

have

been

made

for

establishing

an

appointments commission for judges to the higher judiciary. Some of
these reform proposals are as follows:
i. The 121st Report of the Law Commission (1987) titled ‘A New
Forum for Judicial Appointments’ recommended a broad-based
National Judicial Service Commission representing various interests
with pre-eminent position in favour of the judiciary. This proposed
Commission was to consist of the Chief Justice of India as
Chairperson with three judges of the Supreme Court next to the
Chief Justice in seniority, the immediate predecessor of the Chief
Justice, three senior most Chief Justices of the High Courts, the
Union Minister of Law and Justice, the Attorney General of India
and one law academic. For matters relating to appointment of
judges to the High Court, the Commission was to also include the
Chief Justice of the concerned High Court and the Chief Minister of
the concerned State.
ii. The Constitution (Sixty Seventh Amendment) Bill, 1990 sought to
create the National Judicial Commission to make recommendations
to the President as to the appointment of a Judge of the Supreme
Court (other than the Chief Justice of India), a Judge of a High
Court and as to the transfer of a Judge from one High Court to any
other High Court. This Commission was to consist of the Chief
25

 Justice of India and two other Judges of the Supreme Court next to
the Chief Justice in seniority, for recommendation as to the
appointment of a Judge of the Supreme Court, a Chief Justice of a
High Court and for transfer of a judge from one High Court to
another. For making recommendation as to the appointment of
judge of a High Court, the Commission was to consist of the Chief
Justice of India, the Chief Minister of the concerned State, one
other judge of the Supreme Court next to the Chief Justice in
seniority, the Chief Justice of the High Court and one other Judge
of the High Court next to the Chief Justice of that High Court in
seniority.
iii. The Constitution (Ninety-eighth Amendment) Bill, 2003 sought to
create a National Judicial Commission headed by the Chief Justice
of India with two Judges of the Supreme Court next to the Chief
Justice in seniority; the Union Minister for Law and Justice; and one
eminent citizen to be nominated by the President in consultation
with the Prime Minister, as members.
iv. The Second Administrative Reforms Commission in its Report on
Ethics in Governance (January 2007) proposed the creation of the
National Judicial Council headed by the Vice-President of India and
comprising the Prime Minister, the Speaker of the Lok Sabha, the
Chief Justice of India, the Law Minister, the Leader of the
Opposition in the Lok Sabha, and the Leader of the Opposition in
the Rajya Sabha, in matters relating to appointment of judges to
26

 the Supreme Court. In matters relating to appointment of judges to
the High Courts, the council would also consist of the Chief Minister
of the concerned State and the Chief Justice of the concerned High
Court. The council was to have power to make recommendations to
the President for appointment of judges to the Supreme Court as
well as the High Courts.
v. The Judicial Appointments Commission Bill, 2013 provided for the
composition of the Judicial Appointments Commission. This
Commission was to consist of the Chief Justice of India (as
Chairperson), two other Judges of the Supreme Court next to the
Chief Justice in seniority, the Union Minister of Law and Justice,
two eminent persons to be nominated by the collegium consisting of
the Prime Minister, the Chief Justice of India and the Leader of
Opposition in the Lok Sabha.
45. In addition to the above, Department-Related Parliamentary Standing
Committee on Personnel, Public Grievances, Law and Justice has also,
on various occasions emphasized the need for a broad-based method
for appointment of judges to the higher judiciary. Some of the
Parliamentary

Standing

Committee

Reports

which

have

made

significant observations in this regard are:
i.

21st Report on the Judges (Inquiry) Bill, 2006 (August 2007):
―21.8. ...There was a consensus among Committee members that
pre-1993 position was a better option as it was in consonance with
the provision of the Constitution wherein the executive and the
judiciary both were involved in the consultative process and the
27

 executive had the primacy. The Committee favours the restoration
of pre-1993 position.‖
―21.9. The Committee further suggests that the appointments
could also be entrusted to wider a body other than the collegium
with representation from both the judiciary and the executive. The
Committee is of the considered opinion that it could be entrusted
to the proposed ―Empowered Committee‖ which could initially
screen the names and thereafter, refer the same to the National
Judicial Council for final recommendations.‖

ii.

28th Report on the Supreme Court (Number of Judges)
Amendment Bill, 2008 (August 2008):
“3(iii) The appointment of the Supreme Court and High Court
judges is based on a collegium which consists of Judges alone. As
the higher judiciary and for that matter the judiciary itself
requires highly integrated, qualified worthful, unbiased and
humane personnel with full sense of devotion to the profession,
the new law should have a provision for constitution of a collegium
consisting of the professionals having the above qualities and the
political element should be eliminated from it in future
appointments. The said amendment should have a provision for
constitution of such a collegium.”

iii.

44th Report on the Constitution (One Hundred and Fourteenth
Amendment) Bill, 2010 (December 2010):
―13(i). The collegium system of appointment of Judges should be
replaced by a National Judicial Commission and National Judicial
Services so that vacancies in the High Courts could be fulfilled
timely and in a transparent and accountable manner.‖
―20. The Committee takes a serious note of the concerns expressed
by the witnesses. Integrity, honesty and the output of Judges are
issues that need to be addressed by Government with all
seriousness. The appointment and continuance of the judges is
regulated under the Constitution, but there is an urgent need on
the part of the Government to review the procedure for
appointment of the judges in the higher judiciary and also to put in
place some mechanism so as to optimize the output of their
performance. Towards this objective, Government may consider
creation of a National Judicial Commission having representation
28

 from the judiciary, executive, Bar and the Parliament. The
Committee hopes that Government would take urgent steps in this
direction. The concerns of the people that the proposed action
might extend benefit in terms of extended years of service in
certain non deserving cases too are appreciated, but, in the
Committee‘s view, the solution to this lies in putting in place a
well considered mechanism to see that the judiciary rises above
from such allegations and the public perception changes.

iv.

64th Report on the Judicial Appointments Commission 2013
(December 2013):
―11. The Constitution (One Hundred and Twentieth Amendment)
Bill, 2013, provides for setting up of Judicial Appointments
Commission by inserting Article 124(A) to Constitution of India and
also amending Articles 124(2), 217(1) and 222(1). The structure and
functions of the proposed Commission are provided in the Judicial
Appointments Commission Bill, 2013 which is under examination of
this Committee. The proposed legislation is an ordinary legislation
and amendable by simple majority.‖
―38. The Committee appreciates the attempt of Government to set
up Judicial Appointments Commission in place of present collegium
which has inherent deficiencies and problems of opacity and nonaccountability and reducing the Executive to a secondary position
in the process of appointment of judges to the higher judiciary. It
feels that the proposed Commission would ensure equal and active
participation of both the Executive and the Judiciary in
collaborative and participatory manner to find best and brightest
persons with impeccable integrity to the Bench of higher Judiciary
for the purpose of securing independent and impartial judiciary
which is a Basic Structure of the Constitution, as per judicial
pronouncement, whether one agrees or not.‖
―41. The Committee observes that the present Judicial
Appointments Commission is broad based having representation
from Judiciary, Executive and civil society which would facilitate
wider consultation for assessing the suitability and integrity of the
persons to be appointed as judges to the Bench of higher judiciary.
In that context, the Committee suggests that there should be three
eminent persons in the Commission instead of two as provided for
in the Bill and at least one out of the three members should be
from SC/ST/OBC/Women/minority preferably by rotation. The
Committee also suggests that the fields of eminence may be
specified in the Bill.‖

29

 46. It is unclear as to how the petitioners insist on choosing the model
proposed by the NCRWC Report for judicial appointments over all other
models. As demonstrated, Parliament took into account previous
reform proposals and passed the 99th Amendment. It is not for the
petitioners to insist on one model over others.
47. This is especially so since the 99th Amendment is a response to the
need of the times. Due regard must be had to the fact that the
Constitution (121st Amendment) Bill, 2014 (which was ultimately passed
as the 99th Amendment) was passed by both Houses of the Parliament
with an overwhelming majority. It was passed in the Lok Sabha with
367 members voting in favour and none voting against it. In the Rajya
Sabha, it was passed by 179 members voting in its favour, while one
member abstained from voting. The numbers with which the 121 st
Amendment Bill was passed in both Houses of Parliament symbolises
the will of the people, whose representatives voted in favour of the
said Bill. Hence, the 99th Amendment which is a culmination of the
various reform proposals for ushering in a new appointments process
for the higher judiciary is symbolic of the will of the people of this
country.
48. It deserves mention that within our federal structure, it is not only the
Parliament but also the State legislatures which represent the will of
the people. Till now, 20states have ratified the 99th Amendment. This
is indicative of the fact that the 99th Amendment has been approved by

30

 the will of the people twice over, once in the Parliament and also in
the State legislatures.
49. The citizens of this nation, who, according to the Preamble, have given
the Constitution unto themselves have desired that such a law be
brought into force. It is humbly submitted that the will of the people
unerringly points in one direction, which is the need for a system for
judicial appointments which is more attuned with the changing needs
of time. The Constitution is answerable to the aspirations of the
people, and being a dynamic document, it is expected to adapt to their
needs. In this context, the Parliament in its wisdom would be the best
judge of when the Constitution would require to be amended to answer
to the needs of the citizenry. This Hon‟ble Court pertinently observed
in Pannalal Bansilal Pitti v. State of Andhra Pradesh (1996) 2 SCC
498 per Ramaswamy J. (at p. 510):
―12.…In a democracy governed by rule of law, gradual progressive
change and order should be brought about. Making law or
amendment to a law is a slow process and the legislature attempts
to remedy where the need is felt most acute…‖

50. The overwhelming majority with which the 99thAmendment as well as
the NJAC Act was passed in both Houses of Parliament makes it obvious
that the will of the people points towards replacing the existing system
of appointing judges with a new one. The Statement of Objects and
Reasons of the 99th Amendment also indicate the same:
―3. After review of the relevant constitutional provisions, the
pronouncements of the Supreme Court and consultations with
31

 eminent Jurists, it is felt that a broad based National Judicial
Appointments Commission should be established for making
recommendations for appointment of Judges of the Supreme Court
and High Courts. The said Commission would provide a meaningful
role to the judiciary, the executive and eminent persons to present
their view points and make the participants accountable, while also
introducing transparency in the selection process.‖

51. On this basis it is clear that Parliament was responding to the
deficiencies of the collegium system of appointment of judges and
what it perceived as a rewriting of the Constitution in order to
establish it. This was not done on a whim, but rather taking into
careful account of the reform proposals to this effect, all of which
proposed a judicial appointments commission as well as the widely
perceived criticisms of the collegium system both from within and
outside the judicial fraternity. It was on this basis that Parliament in its
wisdom felt the need for a new, integrated participatory system of
appointment of judges and passed the 99thAmendment and the NJAC
Act. These are factors that must be borne in mind by this Hon‟ble
Court while exercising the power of judicial review in this case.
52. It is also significant to note that the challenge before this Court is only
by advocates or a body of advocates, whether it be the Supreme Court
Advocates-on-Record Association or Bar Association of India etc.
Though the petitioners may have locus standi but ultimately advocates
are not primary consumers of the system of dispensation of justice.
The consumers are the ordinary public which is the ultimate sovereign
in our constitutional framework. The consumers, i.e. the public are
represented through Parliament and State Assemblies. It is the duty of
32

 Parliament and other legislative bodies to take note of the wishes of its
sovereign and change or make laws consistent with their desire. This is
what has been done in the instant case.
53. On the basis of the aforesaid analysis, the following propositions of law
pertaining to the scope of judicial review of constitutional amendments
are advanced for the consideration of this Hon‟ble Court:
a. The power of Parliament to amend the Constitution is plenary
subject to only one restriction: It must not abrogate the basic
structure of the Constitution.
b. There is a presumption of constitutionality for all constitutional
amendments; the burden of proof is on the petitioner to
demonstrate that it is unconstitutional on the basis of hard facts
and not mere surmises and apprehensions.
c. Parliament is best equipped to assess the needs of the people and
the changing times.
d. The scope of judicial review does not extend to reviewing the
wisdom of Parliament or the substance of Parliamentary debates.
e. The Statement of Objects and Reasons cannot be dispositive of
the validity of a constitutional amendment.
f. In any case, the 99th Amendment as well as the NJAC Act are
Parliament‟s response to the need for change in the appointments

33

 process, a need felt widely by distinguished jurists and several
reform proposals made in the past.

34

 C. BASIC STRUCTURE DOCTRINE
I.

What is the basic structure doctrine?
54. The basic structure doctrine was conceived of in the judgment of the
Supreme Court in Kesavananda Bharati. The doctrine in turn is based
on the jurisprudential work of Prof. Dieter Conrad, a professor from
Heidelberg University, Germany.
55. Khanna J. in his judgment in Kesavananda Bharati explained the
genesis of the theory and made an express reference to the work of
Prof. Conrad (at p. 768):
“1431. Although there are some observations in Limitations of
Amendment Procedure and the Constituent Power by Conrad to
which it is not possible to subscribe, the following observations, in
my opinion, represent the position in a substantially correct manner:
―Any amending body organized within the statutory scheme,
howsoever verbally unlimited its power, cannot by its very structure
change the fundamental pillars supporting its constitutional
authority.‖

56. As to what comprises the basic structure, Sikri CJI explained (at p. 365)
that an amendment had to be ―within the broad contours of the
preamble‖ (para 287) and went on to enumerate the following as basic
features (at p. 366):
“292.The basic structure may be said to consist of the following
features:
(1) Supremacy of the Constitution;
(2) Republican and Democratic form of Government;
(3) Secular character of the Constitution;
35

 (4) Separation of powers between the legislature, the
executive and the judiciary;
(5) Federal character of the Constitution.‖

57. Shelat and Grover JJ. enlisted the following as an illustrative list (at p.
454):
“582. If the historical background, the preamble, the entire scheme
of the Constitution, relevant provisions thereof including Article 368
are kept in mind there can be no difficulty in discerning that the
following can be regarded as the basic elements of the constitutional
structure. (These cannot be catalogued but can only be illustrated):
(1) The supremacy of the Constitution.
(2) Republican and Democratic form of government and sovereignty
of the country.
(3) Secular and federal character of the Constitution.
(4) Demarcation of power between the Legislature, the executive
and the judiciary.
(5) The dignity of the individual secured by the various freedoms and
basic rights in Part III and the mandate to build a welfare State
contained in Part IV.
(6) The unity and the integrity of the Nation.‖

58. Reddy J. likened the basic features to props on which the edifice of the
Constitution stands and held as follows (at p. 637):
“1159. The elements of the basic structure are indicated in the
Preamble and translated in the various provisions of the
Constitution. The edifice of our Constitution is built upon and stands
on several props, remove any of them, the Constitution collapses.
These are: (1) Sovereign Democratic Republic; (2) Justice, social,
economic and political; (3) Liberty of thought, expression, belief,
faith and worship; (4) Equality of status and of opportunity.‖

36

 59. Thus, it is humbly submitted that the basic structure comprises many
features like several pillars in a foundation, some of which were
enumerated in the opinions rendered in Kesavananda Bharati, as
cited above. The significance of these pillars is that if one of them is
removed the entire edifice of the constitution will fall. Hence, in
judging a constitutional amendment, the question to be addressed is
whether the said amendment would lead to a collapse of the edifice of
the Constitution.
II.

Merely affecting or impinging upon an article embodying a feature
that is part of the basic structure is not sufficient to declare an
amendment unconstitutional
60. It is submitted that, as a matter of law, to sustain a challenge against
the 99th Amendment of violating the basic structure of the
Constitution, the violation must be of such a nature that the basic
structure itself will collapse. In understanding what is to be avoided so
as to preserve the basic structure, the words of Prof. Conrad as quoted
by Khanna J. in Kesavananda Bharati are useful (at p. 769):
―1431.The amending procedure is concerned with the statutory
framework of which it forms part itself. It may effect changes in
detail, remould the legal expression of underlying principles, adapt
the system to the needs of changing conditions, be in the words of
Calhoun ‗the medicatrix (Sic) of the system‘, but should not touch its
foundations.‖

61. Thus what emerges from the original theory of Prof. Conrad, as
imported into India by Khanna J. is that while details and underlying

37

 legal expressions could be changed, such a change cannot touch the
very foundations of the Constitution.
62. Further, the dicta of Reddy J. in Kesavananda Bharati (at p. 637) is
helpful in understanding the impact which is to be avoided while
effecting a permissible amendment:
―1159. The edifice of our Constitution is built upon and stands on
several props, remove any of them, the Constitution collapses.‖

63. Hegde & Mukherjea JJ. have also explained the above proposition by
stating that while abrogation and emasculation of the basic elements
are impermissible, but reshaping of the constitution is permissible.
They held (at p. 486):
“666. On a careful consideration of the various aspects of the case,
we are convinced that the Parliament has no power to abrogate or
emasculate the basic elements or fundamental features of the
Constitution such as the sovereignty of India, the democratic
character of our polity, the unity of the country, the essential
features of the individual freedoms secured to the citizens. Nor has
the Parliament the power to revoke the mandate to build a welfare
State and egalitarian society. These limitations are only illustrative
and not exhaustive. Despite these limitations, however, there can be
no question that the amending power is a wide power and it reaches
every Article and every part of the Constitution. That power can be
used to reshape the Constitution to fulfil the obligation imposed on
the State. It can also be used to reshape the Constitution within the
limits mentioned earlier, to make it an effective instrument for
social good.‖

64. Giving an example, Sikri CJI said (at pp. 314-15):
―48. The articles which are included in the proviso (to Article 368)
may be now considered. Part V, Chapter I, deals with "the
Executive". Article 52, provides that there shall be a President of
India, and Article 53 vests the executive power of the Union in the
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 President and provides how it shall be exercised. These two articles
are not mentioned in the proviso to Article 368 but Articles 54 and
55 are mentioned.
Article 54 provides:
The President shall be elected by the members of an electoral
college consisting of(a) the elected members of both Houses of Parliament; and
(b) the elected members of the Legislative Assemblies of the States.
49. Article 55 prescribes the manner of election of the President.
50. Why were Articles 52 and 53 not mentioned in the proviso to
Article 368 if the intention was that the States would have a say as
to the federal structure of the country? One of the inferences that
can be drawn is that the Constitution-makers never contemplated, or
imagined that Article 52 will be altered and there shall not be a
President of India. In other words they did not contemplate a
monarchy being set up in India or there being no President.‖

65. This Hon‟ble Court has explained that a mere amendment to an article
of the Constitution, even if embodying a basic feature, will not
necessarily lead to a violation of the basic feature involved. In the
context of the principle of equality, this Hon‟ble Court in Bhim Singhji
v. Union of India (1981) 1 SCC 166 per Krishna Iyer J. explained as
follows (at p. 186):
“20. The question of basic structure being breached cannot arise
when we examine the vires of an ordinary legislation as distinguished
from a constitutional amendment. Kesavananda Bharati [(1973) 4 SCC
225: 1973 Supp SCR 1] cannot be the last refuge of the proprietariat
when benign legislation takes away their ―excess‖ for societal weal.
Nor, indeed, can every breach of equality spell disaster as a lethal
violation of the basic structure. Peripheral inequality is inevitable
when large-scale equalisation processes are put into action. If all the
Judges of the Supreme Court in solemn session sit and deliberate for
half a year to produce a legislation for reducing glaring economic
inequality their genius will let them down if the essay is to avoid
even peripheral inequalities. Every large cause claims some martyr,
as sociologists will know. Therefore, what is a betrayal of the basic
39

 feature is not a mere violation of Article 14 but a shocking,
unconscionable or unscrupulous travesty of the quintessence of equal
justice. If a legislation does go that far it shakes the democratic
foundation and must suffer the death penalty. But to permit the
Bharati ghost to haunt the corridors of the court brandishing fatal
writs for every feature of inequality is judicial paralysation of
parliamentary function. Nor can the constitutional fascination for
the basic structure doctrine be made a trojan horse to penetrate the
entire legislative camp fighting for a new social order and to
overpower the battle for abolition of basic poverty by the ‗basic
structure‘ missile.‖ [Emphasis supplied]

66. While explaining the above proposition, in the context of federalism,
this Hon‟ble Court, speaking through Balakrishnan CJI, held in Ashoka
Kumar Thakur v. Union of India (2008) 6 SCC 1 as follows (at p. 482):
―115. The basic structure of the Constitution is to be taken as a
larger principle on which the Constitution itself is framed and some
of the illustrations given as to what constitutes the basic structure
of the Constitution would show that they are not confined to the
alteration or modification of any of the fundamental rights alone or
any of the provisions of the Constitution. Of course, if any of the
basic rights enshrined in the Constitution are completely taken out,
it may be argued that it amounts to alteration of the basic structure
of the Constitution. For example, the federal character of the
Constitution is considered to be the basic structure of the
Constitution. There are large number of provisions in the
Constitution dealing with the federal character of the Constitution.
If any one of the provisions is altered or modified, that does not
amount to the alteration of the basic structure of the Constitution.
Various fundamental rights are given in the Constitution dealing with
various aspects of human life. The Constitution itself sets out
principles for an expanding future and is obligated to endure for
future ages to come and consequently it has to be adapted to the
various changes that may take place in human affairs.‖ [Emphasis
supplied]

67. Thus, it is humbly submitted that the mere amendment of any one
article of the Constitution will not amount to a violation of the basic
feature embodied in it. Abrogation or emasculation of a feature

40

 requires something significantly more than the mere amendment of the
text. The amendment must be such that one of the pillars of the
Constitution, as illustrated in the aforesaid judgments must collapse
thereby obliterating the foundations of the Constitution.
68. Nothing in the aforesaid argument assumes or concedes that the 99th
Amendment even impinges on the basic structure of the Constitution.
On the contrary, it is our view that the 99 th Amendment is perfectly
consonant with it and strengthens the independence of the judiciary
while upholding democracy, rule of law and checks and balances. A
body like NJAC is in sync with the “need of the times” and is modeled
on, inter alia, “checks and balances” and to ensure a democratic
process with “plurality of views” including that of members of the
public/ civil society. In fact the NJAC results in dilution of the power of
the executive, in favour of the judiciary since three out of six members
are the three seniormost judges of the Supreme Court including the
Chief Justice of India as Chairperson. Thus the NJAC in our view
strengthens the pillars of the independence of the judiciary,
democracy, checks and balances and cannot in any way be said to
impinge, let alone abrogate, any of the basic features of the
Constitution.
III.

Whether a constitutional amendment abrogates the basic structure is
to be assessed on the basis of features as culled out from the text of
the original enactment of the Constitution

41

 69. A sequitur from the preceding argument is that while the Constitution
can be ever changing (in terms of details and legal expressions), its
foundations can never change. Thus there is a constant element in the
Constitution from its very inception which can never be changed which
constitutes the basic structure.
70. To decipher these elements one would certainly have to look at the
original Constitution. This is clear from the judgment of Khanna J. in
Kesavananda Bharati wherein he described the basic structure to be
the ―basic structure or framework of the old Constitution‖ and
explained how it can be discerned as follows (at p. 767):
“1426. …. The word ―amendment‖ postulates that the old
Constitution survives without loss of its identity despite the change
and continues even though it has been subjected to alterations. As a
result of the amendment, the old Constitution cannot be destroyed
and done away with; it is retained though in the amended form.
What then is meant by the retention of the old Constitution? It
means the retention of the basic structure or framework of the old
Constitution. A mere retention of some provisions of the old
Constitution even though the basic structure or framework of the
Constitution has been destroyed would not amount to the retention
of the old Constitution. Although it is permissible under the power
of amendment to effect changes, howsoever important, and to adapt
the system to the requirements of changing conditions, it is not
permissible to touch the foundation or to alter the basic
institutional pattern. The words ―amendment of the Constitution‖
with all their wide sweep and amplitude cannot have the effect of
destroying or abrogating the basic structure or framework of the
Constitution. It would not be competent under the garb of
amendment, for instance, to change the democratic Government into
dictatorship or hereditary monarchy nor would it be permissible to
abolish the Lok Sabha and the Rajya Sabha. The secular character of
the State according to which the State shall not discriminate against
any citizen on the ground of religion only cannot likewise be done
away with. Provision regarding the amendment of the Constitution
does not furnish a pretense for subverting the structure of the
Constitution nor can Article 368 be so construed as to embody the
death wish of the Constitution or provide sanction for what may
perhaps be called its lawful harakiri. Such subversion or destruction
42

 cannot be described to be amendment of the Constitution as
contemplated by Article 368.‖ [Emphasis supplied]

71. In Indira Nehru Gandhi v. Raj Narain1975 Supp SCC 1, Mathew J.
explained the manner in which the meaning and constituent elements
of a basic feature was to be gathered as follows (at p. 137):
“341. Leaving aside these extravagant versions of rule of law, there
is a genuine concept of rule of law and that concept implies equality
before the law or equal subjection of all classes to the ordinary law.
But, if rule of law is to be a basic structure of the Constitution, one
must find specific provisions in the Constitution embodying the
constituent elements of the concept. I cannot conceive of rule of law
as a twinkling star up above the Constitution. To be a basic
structure, it must be a terrestrial concept having its habitat within
the four corners of the Constitution. The provisions of the
Constitution were enacted with a view to ensure the rule of law.
Even if I assume that rule of law is a basic structure, it seems to me
that the meaning and the constituent elements of the concept must
be gathered from the enacting provisions of the Constitution. The
equality aspect of the rule of law and of democratic republicanism is
provided in Article 14. Maybe, the other articles referred to do the
same duty.‖ [Emphasis supplied]

72. The above view was further followed and approved in Minerva Mills
Ltd. v. Union of India(1980) 3 SCC 625 by Bhagwati J. as follows (at
p. 672):
“83. …..But, one position of a basic and fundamental nature I may
make clear at this stage, and there I agree with Mathew J., that
whether a particular feature forms part of the basic structure has
necessarily to be determined on the basis of the specific provisions
of the Constitution.‖ [Emphasis supplied]

73. Thus the aforesaid judgments hold that basic features are to be
determined only on the basis of the specific provisions of the
Constitution as originally enacted.
43

 74. While spelling out the test for judging an amendment of the
Constitution, this Hon‟ble Court in Waman Rao v. Union of India
(1981) 2 SCC 362 (Chandrachud CJI, speaking for himself and Krishna
Iyer, Tulzapurkar and AP Sen JJ.) held as follows (at p. 382):
―17.In the work-a-day civil law, it is said that the measure of the
permissibility of an amendment of a pleading is how far it is
consistent with the original: you cannot by an amendment transform
the original into the opposite of what it is. For that purpose, a
comparison is undertaken to match the amendment with the
original. Such a comparison can yield fruitful results even in the
rarefied sphere of constitutional law. What were the basic
postulates of the Indian Constitution when it was enacted? And does
the 1st Amendment do violence to those postulates? Can the
Constitution as originally conceived and the amendment introduced
by the 1st Amendment Act not endure in harmony or are they so
incongruous that to seek to harmonise them will be like trying to fit
a square peg into a round hole? Is the concept underlying Section 4 of
the 1st Amendment an alien in the house of democracy? — its invader
and destroyer? Does it damage or destroy the republican framework
of the Constitution as originally devised and designed?‖ [Emphasis
supplied]

75. Thus to decipher the basic features, the Constitution as “originally
devised and designed” would have to be considered.
76. In M. Nagaraj v. Union of India (2006) 8 SCC 212 this Court laid down
a two-step test for a principle to qualify as a basic feature, per
Kapadia J. (as he then was) (at p. 243):
―25. For a constitutional principle to qualify as an essential feature,
it must be established that the said principle is a part of the
constitutional law binding on the legislature. Only thereafter, the
second step is to be taken, namely, whether the principle is so
fundamental as to bind even the amending power of Parliament i.e.
to form a part of the basic structure. The basic structure concept
accordingly limits the amending power of Parliament. To sum up: in
order to qualify as an essential feature, a principle is to be first
established as part of the constitutional law and as such binding on
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 the legislature. Only then, it can be examined whether it is so
fundamental as to bind even the amending power of Parliament i.e.
to form part of the basic structure of the Constitution. This is the
standard of judicial review of constitutional amendments in the
context of the doctrine of basic structure. …
Thus, from the above it is clear that, the basic structures of the
Constitution are those principles and doctrines of constitutional law,
which are so essential and unalienable parts of the Constitution,
that the framers of the Constitution never intended them to be
removed or altered from the Constitution. They form part of the
constitutional identity, the abrogation of which would be to displace
the constitutional scheme and framework. Such principles may or
may not be identifiable to any specific provision in the Constitution
but the principles may form the connecting link or the object behind
various provisions of the Constitution.‖

77. Based on the above mentioned decisions of this Hon‟ble Court, it is
submitted that the basic structure of the Constitution has to be
determined on the basis of the Constitution as it stood on the date of
its coming into force, i.e., the features that can be culled out from the
various articles of the original Constitution. Any other interpretation
will be adding to the basic structure, features that were not embodied
in the original Constitution.
78. There is a sound theoretical justification for this proposition. The basic
structure of the Constitution is unamendable because it is seen as a
particular expression of constituent power which was exercised by the
Constituent Assembly. Such constituent power is neither exercised by
future legislatures which work under the Constitution and make laws,
and courts, which likewise work under the Constitution and interpret
it. Thus the basic structure can only be culled out from the provisions
of the Constitution as originally enacted.

45

 79. Keeping this view in its consideration, this Hon‟ble Court in Kuldip
Nayar v. Union of India (2006) 7 SCC 1 held a residence requirement
for election to the Rajya Sabha and secrecy of ballot not to be basic
features, per Sabharwal CJI (at p. 62):
―88. The Irish Constitution like the Indian Constitution does not have
strict federalism. Residence is not insisted upon under the Irish
Constitution (See Constitution of India by Basu, 6th Edn., Vol. F).
Similarly, in the case of the Japanese Constitution, qualifications are
prescribed by the statute and not by the Constitution. The various
constitutions of other countries show that residence, in the matter
of qualifications, becomes a constitutional requirement only if it is
so expressly stated in the Constitution. Residence is not the essence
of the structure of the Upper House. The Upper House will not
collapse if residence as an element is removed. Therefore, it is not a
prerequisite of federalism.‖
―89. It can be safely said that as long as the State has a right to be
represented in the Council of States by its chosen representatives,
who are citizens of the country, it cannot be said that federalism is
affected. It cannot be said that residential requirement for
membership to the Upper House is an essential basic feature of all
federal constitutions. Hence, if the Indian Parliament, in its wisdom
has chosen not to require a residential qualification, it would
definitely not violate the basic feature of federalism. Our
Constitution does not cease to be a federal constitution simply
because a Rajya Sabha Member does not ―ordinarily reside‖ in the
State from which he is elected.‖

80. Since there does not exist an exhaustive list of basic features to date,
basic features can be discovered over time. However all such features
must be culled out from the specific provisions of the original
Constitution. Even a judicial pronouncement cannot devise a new
feature to qualify as a basic feature since something that is devised
after the coming into force of the Constitution surely cannot be
considered a foundation of the edifice of the Constitution, if it did not
exist when the edifice was being built.
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 81. On the basis of the aforesaid analysis, the following propositions of law
pertaining to the basic structure doctrine are advanced for the
consideration of this Hon‟ble Court:
a. The basic structure of the Constitution contains several values
which form the foundation of the Constitution.
b. Merely impinging on one of these values does not violate the basic
structure; a constitutional amendment must abrogate it in a
manner that the foundation itself collapses. In any event, the 99 th
Amendment does not even impinge on any value that is part of the
basic structure.
c. To determine whether a value is part of the basic structure, such
value will have to be discerned from the provisions of the
Constitution as originally enacted.

47