top of page


Paper Details Paper Code: CC-CLA-V2-14 Category: Case Commentary Date of Submission for First Review: March 28, 2022 Date of Acceptance: July 6, 2022 Citation: Joy Kumar Gupta & Harsh Dabas, “Supreme Court Advocates on Record vs Union of India”, 2, AIJACLA, 163, 163-167 (2022).

Author Details: Jay Kumar Gupta, First year, BBA LL.B.(Hons.), Student, NMIMS School of Law, Bengaluru & Harsh Dabas, 1st Year Law Student, University School of Law and Legal Studies, Guru Gobind Singh Indraprashtha University

Abstract This article considers "judge hegemony" in the appointment of judges, as defined in the case under consideration. The NJAC ruling saved the independence of judges. Article 99 of the Constitutional Amendment aimed at replacing the "collegium" method of appointing judges with the National Committee for the Appointment of Judges ["NJAC"] was rejected by the Hon’ble Apex Court. It is to be decided before the Hon’ble Supreme Court whether the Second Judge's case saw the importance of the judiciary's top priority as part of the basic structure or as an "interpretative explanation" of Article 124 of the Constitution. In addition, the constitutionality of the 99th Amendment could not be ruled. Therefore, future attempts to change the way judges are appointed must remain true to the principles of the second judge's case. Keywords: Collegium System, NJAC, Independence, 99th Amendment, Art. 124 of Indian Constitution

FACTS + ISSUES In 2014, Parliament unanimously passed the 99th Constitutional Amendment Act and the Article 121 Amendment Act, establishing a national committee for the appointment of judges.[1] NJAC oversaw the appointment of CJI, Apex Court Judge, Chief Justice of India, and other High Court Judges. However, in the Supreme Court's Proceedings of Supreme Court Advocates on Record Association vs Union of India, the entire committee was closed when the Supreme Court decided to abolish the law that resulted in NJAC.[2] Articles 124[3] and 217[4] of the current system of appointment of judges provide rules for the appointment of judges in the High Court and the Supreme Court. Meanwhile, Articles 224[5] and 224A say the same for additional and deputy judges in other courts. In addition, the President must consider CJI's views when appointing judges. The government must follow the CJI's decision. CJI's opinion must be based on extensive deliberation by a committee of at least four Supreme Court judges. In 2015, the Supreme Court Advocates-on-Record Association and Senior Attorneys challenged the Article 99 amendment and the legality of the NJAC Act in a writ petition to the Supreme Court. This law aims to violate the basic structure, the "separation of powers". Separation of powers refers to the separation of powers between the administrative, legislative, and judicial departments of a state. The petition alleged, among other things, that NJAC violated the basic structure of the Constitution by endangering the independence of the court. The issue raised was - Whether or not the "Principles of Separation of Powers" are violated by the Constitution (Ninety-Ninth Amendment) Act of 2014 and the National Judicial Appointments Commission Act of 2014?

ARGUMENTS ADVANCED The petitioner filed numerous writ allegations on this issue, and the case was heard in front of the Hon'ble 5 Bench. Its composition consists of Jagdish Singh Khehar, Chelameswar, Madan B. Lokur, Kurian Joseph, and Adarsh ​​Kumar Goel. The petitioner contended that the matter should be referred to the bench of Five Judges under Article 145 (3)[6] of the Constitution of India, as the issues will be interpretations of the Constitution, and the National Judicial Appointment Commission (NJAC) Act. NJAC should not be proposed until the petition is resolved. Initially, the petitioner (SCAORA) denied Judge Khehar's involvement in the case. [7] They argued that Judge Khehar was unfair because he had "substantial constitutional control" over the judicial appointment process at issue in this case. In addition, Judge Khehar was a member of the current system, "Collegium," in which the Supreme Court's senior judge has ultimate discretion in appointing. However, this allegation was refuted by Judge Chelameswar, noting that if the petitioner's reasoning followed a reasonable purpose, literally all Supreme Court judges would be disqualified because they could serve a quorum. Defendants later filed a petition with the court seeking to re-examine the legitimacy of two case cases directly related to the case, the second and third judge cases. Before addressing the benefits of the same, Judge Khehar denied the motion in the first part of his opinion to the court. A senior lawyer argued that it was illegal to include two "eminent persons" in a six-member NJAC, as provided in Article 124A of the Constitution (Article 99 Amendment). It was argued that there must be some indication of a favorable qualification that must be owned by the two "prominent individuals" nominated by NJAC. Some disqualifications had to be specified. For example, it was pointed out that anyone with a conflict of interest should be rejected. And if the person has a political function, such a conflict will be obvious. It was also argued that under the second proviso of Section 5 (2) and Section 6 (6) of the NJAC Act, the recommendation to appoint a judge could not be carried out without the consent of the two "eminent people”. The proposed proposal could not be carried out without the consent of the other members of the NJAC, even if four other members of the NJAC, including all three representatives of the Supreme Court, accepted it.

JUDGEMENT The Supreme Court overturned the 91st Amendment Act of 2014 and the National Judicial Appointment Commission Act and ruled that it was unconstitutional and invalid at a ratio of 4: 1. The court dismissed the defendant's request to have the larger bench re-reconsider the cases of the second and third judges. As a result, the collegium system has been restored.[8]

ANALYSIS Following a study of the case, it is clear that a five-member Supreme Court bench handled the matter well, reaching such a verdict after thirty days of deliberation. The petitioner in this instance argued that the Act should not be enforced until the petition was resolved, but the respondent countered that the petitioner's arguments were irrelevant because we couldn't say anything until the causes were determined. The National Judicial Appointments Commission will be made up of the Chief Justice, two of the Supreme Court's most senior judges, the Law Minister, and two other members appointed by the Prime Minister and Chief Justice of India (NJAC). The National Judicial Appointment Commission's (NJAC) functions are also defined. After three years, this project was completed. This commission, on the other hand, goes against the Indian Constitution's core framework, which guarantees the independence of the judiciary.[9] Furthermore, it is said that this judgment is significant in that it has defined the issue even further, emphasizing the importance of paying attention to the Indian Constitution's core framework when enacting any constitutional modification. The matter at hand has been expertly handled in the decision, and the reasoning presented in this regard is fundamental, straightforward, and easy to comprehend for anybody.[10]

NJAC AND ITS POSSIBLE OUTCOMES The National Judicial Appointment Commission Bill 2014, which was enacted by a large majority in both chambers and received the President's approval, sought to make judicial appointments more transparent and transferable. It would take the place of the two-decade-old "collegium system" for appointing judges. It elicited a variety of responses. Some were in favour of it, while others were vehemently opposed. In "Supreme Court Advocates on Record versus Union of India 2015," the Supreme Court declared the bill illegal and invalid.

WHAT IF IT WOULD NOT HAVE BEEN STRUCK DOWN? It's difficult to forecast what will happen if a measure is passed. Some legal experts believe that if it had continued to exist, the executive branch would have had greater power than the judicial branch, undermining the notion of judicial independence from the administration. The Supreme Court established the primacy of the Chief Justice of India as the core framework of the Indian constitution in the "second judge" decision; however, the powers of the Chief Justice of India were decreased in the NJAC. It tampers with the Indian Constitution's essential foundation. In the case of Keshav Nanda Bharti vs. Kerala State,[11], The Indian constitution's core framework, according to the Supreme Court, cannot be modified under any circumstances. There was a provision in the NJAC (Article 124 C)[12] that the legislature could amend the powers controlling the NJAC at any time through the ordinary legislative procedure. It goes against the ruling in the "second judge" case, which upheld the judiciary's independence from the executive, because it provides the executive vast control over the appointments of judges to the Supreme Court and high court, potentially leading to a parliamentary dictatorship. Article 124A calls for the NJAC to have two prominent individuals on it, and these two people will be crucial in deciding who gets nominated to be a judge. It's unclear because no criteria have been provided for choosing these potential candidates. Who is and who is not a potential person? Can the different perspectives of the committee members polarise them? It also increased the risk associated with the appointment of judges because these new hires might not be qualified to practise law or might have their loyalties aligned with the executive. The issue of judicial accountability may have been partially overcome because the administration would now be responsible for the judiciary's appointments. The NJAC Act's acceptance of the veto powers of the two members was one of its main problems. Oddly, a democratic constitutional framework would include a legislative provision explicitly granting veto power to two NJAC members. Because any two NJAC members may exercise their veto authority, the NJAC is virtually allowed to make decisions at random. There is no standard by which veto rights might be applied.

CONCLUSION The independence of the judiciary may have been threatened by NJAC. In the beginning, the law was murky. The inclusion of the prime minister and chief minister in the committee, as well as the inclusion of the "two eminent persons" in the committee, among other provisions of the NJAC, could foreshadow future judicial interference, the legislature's ability to amend the act's provisions through regular law-making bodies in the future. These incoming individuals may jeopardise the choice of judges due to their political vested interests. The judiciary may potentially be compromised by officials from the executive branch. It may result in the judiciary becoming a dictatorship.

[1] Infra note 9 [2] Ibid [3] The Constitution of India,1950, art.124 [4] The Constitution of India,1950, art. 217 [5] The Constitution of India,1950, art. 224 [6] The Constitution of India, 1950,art. 145(3) [7] Infra note 9 [8] Apararajita Balaji, supreme court advocates on record association vs union of india,lawtimesjournal (last visited: March 14,2022) [9] Anchal Chhallani, Supreme Court Advocates-On-Record & Ors. v. Union of India,Jus Dicere (Last visited: March 14,2022) [10] ibid [11] Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225; AIR 1973 SC 1461 [12] The Indian Constitution,1950, art. 124

673 views0 comments

Recent Posts

See All


bottom of page