2096-R

IN THE

HON’BLE SUPREME COURT

OF INDIA

—IN THE MATTERS OF—

SUPREME COURT ADVOCATES ON RECORD ASSOCIATION .... PETITIONER

(REPRESENTED BY COUNSEL)

v.

UNION OF INDIA .... RESPONDENT

(REPRESENTED BY THE ATTORNEY GENERAL)

WRIT PETITION NO. XXX/2023

________________________________________________________________________

(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA, 1950 READ WITH ORDER XXXVIII,

RULE 1 OF THE SUPREME COURT RULES, 2013)

MEMORIAL ON BEHALF OF THE RESPONDENT

1
 TABLE OF CONTENTS

INDEX OF AUTHORITIES...................................................................................................3

STATEMENT OF JURISDICTION......................................................................................5

ISSUES FOR CONSIDERATION.........................................................................................6

STATEMENT OF FACTS......................................................................................................7

SUMMMARY OF ARGUMENTS.........................................................................................8

ARGUMENTS ADVANCED..................................................................................................9

Prayer for relief........................................................................................................................17

2
 INDEX OF AUTHORITIES

Cases

In Re Special Reference 1 of 1998: 1998 Supp. 2 SCR 40......................................................14

Kesavananda Bharati vs. State of Kerala & Anr AIR 1973 SC 1461........................................8

SP Gupta vs Union of India AIR 1982 SC 14............................................................................9

Sub-Committee on Judicial Accountability v. Union of India and Ors. (1991) 4 SCC 69......11

Supreme Court Advocates on Record Association vs Union of India (2016) 5 SCC..............16

Supreme Court Advocates on Record Association vs. Union of India (1993) 4 SCC 44........11

Statutes

Right to Information Act, 2005................................................................................................16

Other Authorities

Constituent Assembly Debates On 24 May, 1949 Part I.........................................................13

Law Commission of India 121st Report, 1987: ‘A new Forum for Judicial Appointments.....14

Law Commission of India 80th Report, 1979: ‘Method of Appointment of Judges’...............13

Law Commission of India, 2018: ‘Appointment of Judges to the Supreme Court of India:

Transparency, Accountability and Independence................................................................12

Constitutional Provisions

Article 112(3)(d)(i), The Constitution of India, 195................................................................10

Article 112(3)(d)(iii), The Constitution of India, 195..............................................................10

Article 113(1), The Constitution of India, 1950......................................................................10

Article 12, The Constitution of India, 1950.............................................................................11

Article 121, The Constitution of India, 195.............................................................................11

Article 124(2), The Constitution of India, 1950........................................................................9

3
Article 124(6), The Constitution of India, 195..........................................................................9

Article 129, The Constitution of India, 195.............................................................................11

Article 202(3)(d), The Constitution of India, 195....................................................................10

Article 203(1), The Constitution of India, 195........................................................................10

Article 211, The Constitution of India, 195.............................................................................11

Article 215, The Constitution of India, 1950...........................................................................11

Article 217(1), The Constitution of India, 195........................................................................10

Article 219, The Constitution of India, 1950.............................................................................9

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 STATEMENT OF JURISDICTION

The Respondent most humbly submits that the Hon’ble Supreme Court of India has the

jurisdiction to hear the present matter of:

(1) WRIT PETITION NO. XXX/2023 filed by Supreme Court Advocates on Record

Association under Article 32 of the Constitution of India.

All of which is urged in detail in the written submission and is submitted most respectfully.

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 ISSUES FOR CONSIDERATION

(1) WHETHER THE 106th AMENDMENT INTRODUCING THE NATIONAL

JUDICIAL SERVICE COMMISSION IS ULTRA VIRES THE CONSTITUTION

OF INDIA, 1950 BY VIRTUE OF UNDERMINING THE INDEPENDENCE OF

THE JUDICIARY?

6
 STATEMENT OF FACTS

Article 124 of the Indian Constitution empowers the President to appoint Judges of the

Supreme Court of India in consultation with the Chief Justice of India. After the case of

Supreme Court Advocates on Record Association v Union of India 1993, the word

'consultation' has been interpreted to mean 'concurrence' of the Chief Justice along with two

senior most judges of the Supreme Court thus marking the birth of the collegium system. The

Third judge's case in 1998 increased this number from two to four.

II

 In 2015, the Constitution was amended to introduce the National Judicial Appointments

Commission (NJAC) to replace the collegium system. However, the NJAC was struck down

as unconstitutional by the Supreme Court Advocates on Record Association v Union of India

2015.

III

In 2022, the Parliament of India introduced an amendment to the Constitution, amending

Article 124, introducing a National Judicial Service Commission with the Chief Justice of

India, 2 Senior-most judges of the Supreme Court, 2 Senior Advocates practising before the

Supreme Court to be nominated by the Bar Council of India, the Prime Minister, Union Law

Minister India, 4 members from the Lok Sabha including 2 members from the opposition to

be nominated by the President, 2 members from the Rajya Sabha nominated by the Vice-

President, 2 distinguished jurists / Professor of Law nominated by the University Grants

Commission. This amendment has been challenged before the Honourable Supreme Court by

the Supreme Court Advocates on Record Association.

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 Hence the present matter before this Hon’ble Court.

SUMMMARY OF ARGUMENTS

(1) THE 106th AMENDMENT, 2022 DOES NOT VIOLATE THE BASIC

STRUCTURE OF THE CONSTITUTION BY VIRTUE OF UNDERMINGING

INDEPENDENCE OF THE JUDICIARY.

It is most humbly submitted before this Hon’ble Court that the National Judicial Service

Commission does not violate independence of the judiciary as envisaged under the basic

structure doctrine established under Kesavananda Bharati vs. State of Kerala & Anr AIR

1973 SC 14611, and is therefore in line with the provisions of the constitution, which provides

for adequate safeguards to ensure independence of the judiciary from executive influence.

(2) THE NATIONAL JUDICIAL SERVICE COMMISSION IS NECESSARY TO

COMPENSATE FOR THE SHORTCOMINGS IN THE CURRENT

PROCEDURE FOR APPOINTMENT OF JUDGES.

It is most humbly submitted before this Hon’ble Court that the NJSC makes up for the faults

that lie within the current procedure for appointment of judges i.e., the collegium system. The

NJSC aims to appoint judges through a fair, just and transparent procedure by consulting

competent authorities and to expedite the process of appointment of judges.

1
Kesavananda Bharati vs. State of Kerala & Anr AIR 1973 SC 1461

8
 ARGUMENTS ADVANCED

(1) THE 106th AMENDMENT, 2022 DOES NOT VIOLATE THE BASIC

STRUCTURE OF THE CONSTITUTION BY VIRTUE OF UNDERMINGING

INDEPENDENCE OF THE JUDICIARY.

The respondent would like to state that the concept of independence of the judiciary is not

limited only to independence from executive pressure or influence but it is a much wider

concept which takes within its sweep independence from many other pressures and pre-

judices. It has many dimensions, namely, fearlessness of other power centres, economic or

political, and freedom from prejudices acquired and nourished by the class to which the

Judges belong.2 The respondent would like to highlight that there are adequate provisions

under the constitution that safeguard the independence of the judiciary.

(1) Every person appointed to be a Judge of the Supreme Court or of a High Court before

he enters upon his office, makes and subscribes an oath or affirmation according to

Article 124(6)3 of the constitution, as set out in the Third Schedule to the constitution,

whereby the judge concerned bears true faith and allegiance not to the appointing

authority i.e. the executive, but to the Constitution of India.

(2) The tenure of office that the appointee holds, is fixed by the Constitution itself stating

that the Judge appointed shall hold office until he attains the age of sixty five years in

the case of the Supreme Court as per Article 124(2)4 and of sixty two in the case of

High Court as per Article 2195, but not at the: pleasure of the appointing authority.

2
SP Gupta vs Union of India AIR 1982 SC 149
3
Article 124(6), The Constitution of India, 1950
4
Article 124(2), The Constitution of India, 1950
5
Article 219, The Constitution of India, 1950

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 (3) The salaries, allowances and pensions payable to the Judges of the Supreme Court are

charged on the Consolidated Fund of India as mandated by Article 112(3)(d)(i)6. In

the case of a High Court Judge the expenditure in respect of the salaries and

allowances are charged on the Consolidated Fund on each State as mandated

by Article 202(3)(d)7 but the pensions payable to the High Court Judges are charged

on the Consolidated Fund of India according to Article 112(3)(d)(iii)8 of the

Constitution.

The expenditure so charged on the Consolidated Fund of India shall not be submitted

to the vote of Parliament though nothing prevents the discussion in either House of

Parliament of any those estimates (vide Article 113(1)9). Similarly the expenditure

charged on the Consolidated Fund of a State shall not be submitted to the vote of

Legislative Assembly, but nothing prevents the discussion in the Legislature of any of

those estimates (vide Article 203(1)10).

(4) A Judge of the Supreme Court or a High Court cannot be removed from his office

except by an order of the President passed after an address by each House of

Parliament supported by a majority of the total membership of that House and by a

majority of not less than two-thirds of the members of that House present and voting

has been presented to the President in the same session for such removal on the

ground of proved misbehaviour or incapacity. The above procedure for removal of a

Judge is embodied in Article 124(4)11 as regards the Supreme Court Judges and in

proviso (b) to Article 217(1)12 read with Article 124(4)13 as regards the High Court

6
Article 112(3)(d)(i), The Constitution of India, 1950
7
Article 202(3)(d), The Constitution of India, 1950
8
Article 112(3)(d)(iii), The Constitution of India, 1950
9
Article 113(1), The Constitution of India, 1950
10
Article 203(1), The Constitution of India, 1950
11
Ibid.
12
Article 217(1), The Constitution of India, 1950
13
Ibid

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 Judges. In other words, the same procedure mutatis mutandis applies to the High

Court Judges.

(5) No discussion shall take place in Parliament with respect to the conduct of any Judge

of the Supreme court or High Court in the discharge of his duties except upon a

motion before the Parliament but not in the legislature of a State for presenting an

address to the President praying for the removal of the Judge as provided in the

Constitution (vide Articles 12114 and 21115).

(6) Both the Supreme Court and every High Court are Courts of record, having all power

of such a Court including the inherent power to punish for contempt of themselves as

empowered by Article 12916 and 21517 respectively.

(7) Both Supreme Court and High Courts have jurisdiction of judicial review of all

actions of "the State" as defined in Article 1218 and all other statutory authorities. It

has been opined by this Hon’ble Court in Sub-Committee on Judicial Accountability

v. Union of India and Ors. (1991) 4 SCC 69919. That even in relation to proceedings

for impeachment of a Judge, there is an area of judicial review.

Adequate independence of the judiciary is secured by law and public opinion and the

standard of conduct exercised by both the Bench and the Bar.20 The texture and tone of the

amendment is inclined towards improving the situation in the matter of appointment of

judges on the diagnosis made by them. The elimination of executive action in appointment of

judges is not at all necessary to secure judicial independence as the existing constitutional

protective conditions are more than sufficient to preserve judicial independence.

Independence of judiciary under the Constitution has to be interpreted within the framework

14
Article 121, The Constitution of India, 1950
15
Article 211, The Constitution of India, 1950
16
Article 129, The Constitution of India, 1950
17
Article 215, The Constitution of India, 1950
18
Article 12, The Constitution of India, 1950
19
Sub-Committee on Judicial Accountability v. Union of India and Ors. (1991) 4 SCC 699
20
Supreme Court Advocates on Record Association vs. Union of India (1993) 4 SCC 441

11
and the parameters of the Constitution. There are various provisions in the Constitution which

indicate that the Constitution has not provided something like a 'hands off attitude' to the

judiciary. Even former CJI, JS Verma submitted that it was wrong to assume, that the manner

of appointment of Judges, had any impact on the “independence of the judiciary”. In this

behalf, it was pointed out, that the independence of Judges, did not depend on who appointed

them but upon their individual character. 

(2) THE NATIONAL JUDICIAL SERVICE COMMISSION IS NECESSARY TO

COMPENSATE FOR THE SHORTCOMINGS IN THE CURRENT

PROCEDURE FOR APPOINTMENT OF JUDGES.

The Law Commission of India in its report on “Transparency in the Appointment of Judges”,

submitted in 201821, highlighted several shortcomings in the collegium system.

(1) Lack of transparency: The collegium operates in secrecy and its proceedings and

decision making processes are not open to the public, leading to a lack of

accountability.

(2) Nepotism: The report noted that the collegium system has been criticized for

favoritism and nepotism in the appointment of judges.

(3) Lack of representation: The report states that the collegium system does not

adequately represent the diversity of India’s population, as it is dominated by judges

from a few elite backgrounds.

(4) No input from other stakeholders: The report highlighted that the collegium system

does not take the input from other stakeholders such as the Bar Council of India, in

the appointment process.

21
Law Commission of India, 2018: ‘Appointment of Judges to the Supreme Court of India: Transparency,
Accountability and Independence’

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Even in the past, the Law Commission stated in its 80th report 22 that “criticism has generally

been levelled that the selection process has not been proper and has been induced by ulterior

considerations. It has lamented that a person appointed not on merit but because of favoritism

or ulterior considerations can hardly command any real and spontaneous respect from the bar.

(1) In the collegium system, matters pertaining to appointment are not justiciable on any

grounds, including of bias, as the Chief Justice’s opinion is indicated sufficient

safeguard and protection against any arbitrariness. The respondent would like to

quote Sardar Vallabhbhai Patel, in his letter addressed to the Governor General of

India on the 8th of December, 1947 regarding the filling of vacancies in courts. It

reads thus: Purity of motives is not the monopoly of a Chief Justice nor nepotism and

jobbery the vices of the politicians only.

Dr. B.R. Ambedkar too pointed out that, “With regard to the question of the concurrence of

the Chief Justice, it seems to me that those who advocate that proposition seem to rely

implicitly both on the impartiality of the Chief Justice and the soundness of his judgment. I

personally feel no doubt that the Chief Justice is a very eminent, person. But after all the

Chief Justice is a man with all the failings, all the sentiments and all the prejudices which we

as common people have…”.23

Then again, Justice Bhagwati has stated, “We are all human beings with our own likes and

dislikes, our own predilections and prejudices and our mind is not so comprehensive as to be

able to take in all aspects of a question at one time and moreover sometimes, the information

on which we base our judgments may be incorrect or inadequate and our judgment may also

sometimes be imperceptibly influenced by extraneous or irrelevant considerations... it is

22
Law Commission of India, 80th Report, 1979: ‘Method of Appointment of Judges’
23
Constituent Assembly Debates On 24 May, 1949 Part II

13
unwise to entrust power in any significant or sensitive area to a single individual, howsoever

high or important may be the office which he is occupying."

The judges, across the Three Judges cases, pertinently noted the principle of reciprocity in

their opinions that once a favour has been extended, the recipient feels indebted to the giver

and is often uncomfortable with this indebtedness feeling compelled to cancel the debt…

often against his better judgement. And so the cycle continues…leaving the judges

unwittingly influenced by the nonconscious, subconscious, unconscious bias having been

placed in a position of conflict of interest.

(2) Addressing the convention of seniority, as regards to the appointment procedure, the

Law Commission in its 121st Report24 stated - 'a convention be established that

appointment to the office of the Chief Justice rests on special considerations and does

not as a matter of course go to the senior- most puisne Judge’. The members of the

Commission expressed an opinion against automatic promotion of a judge on the

basis of seniority only. It was vehemently urged that 'to pursue the convention of

seniority blindly would be to perpetuate a hierarchy built on commitment; a hierarchy

so arranged that the two seniormost sitting Judges would outlive all other sitting

judges of the Supreme Court, many of whom have unexceptional records'. When

analysed in depth, the only answer that surfaces is that barring the total, subjective

satisfaction of the Chief Justice of India, no other rational explanation can be offered

for such performances.25 

(3) All institutions in a democratic country should have a representative character, and

should reflect the diversity of caste and community. The Collegium system has not

been able to address the issue of the widest possible representation, an Indian reality.

24
Law Commission of India 121st Report, 1987: ‘A new Forum for Judicial Appointments’
25
In Re Special Reference 1 of 1998: 1998 Supp. 2 SCR 400

14
 Justice Yvonne Mokgoro, former judge of the Constitutional Court of South Africa

had this to say: “Judicial transformation in South Africa must include a new judicial

appointments procedure which is open and independent of external influence;

changing the demographics of the Bench, in particular with regards to race and gender

as critical aspects of shaping the form of a judiciary which serves an open and

democratic society; appreciating that judicial competence and how judges manage

their judicial power and independence are major aspects of enhancing access to justice

and judicial accountability. In a society such as ours, where patriarchy is so deeply

entrenched, affecting adversely the everyday lives of so many women, including

women in the law, the strategic value of women’s participation on the Bench and

positions of power and authority should not be underestimated. Their development

management style, the influence of the unique perspectives they bring to the

adjudicative task and even the mere symbolism of their presence there could bring

enormous returns for the transformation process itself and respect for women in

society at large. The need for women both in the judiciary as a whole and in

leadership positions in particular cannot be exaggerated. Although, we have come a

long way, we must agree that we have just scratched the surface. We must step up our

efforts. Some things must change.” The considerations in different countries are, to

put it simply, different. We need to have our own indigenous system suited to our

environment and our own requirements. Australia and South Africa have had a gay

judge on the Bench. We are yet to witness this in India.

(4) The mode of appointment of judges must be such as will ensure the appointment of

persons who are best qualified for judicial office. It must provide safeguards against

improper influences being taken into account so that only persons of competence,

integrity and independence are appointed. The National Service Judicial Commission

15
 ensures that the appointment process appoints judges not on influence but on

excellence.26

(5) What the Commission aims to achieve is greater transparency and accountability,

while preserving all the existing constitutional arrangements for ensuring decisional

independence in the matters pertaining to appointment of judges.” It seeks to broad

base the method of appointment of Judges in the Supreme Court and High Courts,

enables participation of judiciary, executive and eminent persons and ensures greater

transparency, accountability and objectivity in the appointment process.

The manner of appointment of Judges to the higher judiciary, through the NJSC,

would have two major advantages. It would introduce transparency in the process of

selection and appointments of Judges, which had hitherto before, been extremely

secretive, with the civil society left wondering about, the standards and the criterion

adopted, in determining the suitability of candidates. Secondly, it would diversify the

selection process, which would further lead to accountability in the matter of

appointments. The rights of individuals, determined at the hands of the executive,

have been transparent under the Right to Information Act, 200527. Likewise, the

selection and appointment of Judges to the higher judiciary, must be known to the

civil society, so as to introduce not only fairness, but also a degree of assurance, that

the best out of those willing, were being appointed as Judges.

It is submitted, that the composition of the commission is such, as would ensure the

independence of the Judges appointed to the higher judiciary.

26
Supreme Court Advocates on Record Association vs Union of India (2016) 5 SCC 1
27
Right to Information Act, 2005

16
 PRAYER FOR RELIEF

Wherefore, in light of the facts stated, issues raised, arguments advanced and authorities

cited, it is most humbly and respectfully prayed before the Hon’ble Supreme Court of India,

that it may be pleased to

(1) Hold that the 106th amendment to the constitution pertaining to the National Judicial

Service Commission upholds the provisions of the Constitution and is not ultra vires

the Constitution of India, 1950.

(2) Dismiss the present petition.

And pass any other order that it may deem fit in the ends of justice, equity, and good

conscience.

Date: 1st February, 2023 Counsel No. 2096-R

Place: New Delhi (Counsel for Respondent)

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