TITLE
Supreme Court Advocates- on – Record Association V/s Union of India A.I.R
2015--SCW 5457
In the Supreme Court of India
Civil Original Jurisdiction
Case No.
Writ Petition (Civil) no. 13 of 2015
Petitioner
Supreme Court Advocates on Record Association
Respondent
Union of India
Bench
Justice Jagdish Singh Khehar, Justice Chelameswar, Justice Madan B. Lokur,
Justice Kurian Joseph, Justice Adarsh Kumar Goel
, Background
The case of Supreme Court Advocates-on- Record Association & Anr. v. Union of
India, was a 2014 judgement of the Supreme Court of India, which dealt with the
99th amendment to the Indian Constitution. In its 1042 page judgement, the court
declared the Constitution (Ninety ninth Amendment) Act, 2014 (hereinafter
referred to as, the Constitution (99th Amendment) Act), and the National Judicial
Appointments Commission Act, 2014 (hereinafter referred to as, the NJAC Act) as
unconstitutional. This paper seeks to rebut the three main issues bought forth in the
judgement. Article 368 of the Indian Constitution lays down the power of the
parliament to amend the Constitution and the procedure there-for to do the same.
The Indian Constitution provides a very easy and simple procedure to amend the
Constitution under Article 368, reflecting the Constitution's partly rigid-partly
flexible character. The provision has been put to use over 100 times.
The amending mechanism was lauded even at the time of introduction of the
Constitution by Dr. Ambedkar in the following words2 ‘We can therefore safely
say that the Indian federation will not suffer from the faults of rigidity or legalism.
Its distinguished feature is that it is a flexible federation.’ It is the system of
appointment and transfer of judges that has evolved through judgments of the
Supreme Court, and not by an Act of Parliament or by a provision of the
Constitution. The Supreme Court collegium is headed by the Chief Justice of India
and comprises four other senior most judges of the court.
A High Court collegium is led by its Chief Justice and four other senior most
judges of that court. Names recommended for appointment by a High Court
collegium reaches the government only after approval by the CJI and the Supreme
Court collegium.
Judges of the higher judiciary are appointed only through the collegium system —
and the government has a role only after names have been decided by the
collegium. The government’s role is limited to getting an inquiry conducted by the
Intelligence Bureau (IB) if a lawyer is to be elevated as a judge in a High Court or
the Supreme Court. It can also raise objections and seek clarifications regarding the
collegium’s choices, but if the collegium reiterates the same names, the
Supreme Court Advocates- on – Record Association V/s Union of India A.I.R
2015--SCW 5457
In the Supreme Court of India
Civil Original Jurisdiction
Case No.
Writ Petition (Civil) no. 13 of 2015
Petitioner
Supreme Court Advocates on Record Association
Respondent
Union of India
Bench
Justice Jagdish Singh Khehar, Justice Chelameswar, Justice Madan B. Lokur,
Justice Kurian Joseph, Justice Adarsh Kumar Goel
, Background
The case of Supreme Court Advocates-on- Record Association & Anr. v. Union of
India, was a 2014 judgement of the Supreme Court of India, which dealt with the
99th amendment to the Indian Constitution. In its 1042 page judgement, the court
declared the Constitution (Ninety ninth Amendment) Act, 2014 (hereinafter
referred to as, the Constitution (99th Amendment) Act), and the National Judicial
Appointments Commission Act, 2014 (hereinafter referred to as, the NJAC Act) as
unconstitutional. This paper seeks to rebut the three main issues bought forth in the
judgement. Article 368 of the Indian Constitution lays down the power of the
parliament to amend the Constitution and the procedure there-for to do the same.
The Indian Constitution provides a very easy and simple procedure to amend the
Constitution under Article 368, reflecting the Constitution's partly rigid-partly
flexible character. The provision has been put to use over 100 times.
The amending mechanism was lauded even at the time of introduction of the
Constitution by Dr. Ambedkar in the following words2 ‘We can therefore safely
say that the Indian federation will not suffer from the faults of rigidity or legalism.
Its distinguished feature is that it is a flexible federation.’ It is the system of
appointment and transfer of judges that has evolved through judgments of the
Supreme Court, and not by an Act of Parliament or by a provision of the
Constitution. The Supreme Court collegium is headed by the Chief Justice of India
and comprises four other senior most judges of the court.
A High Court collegium is led by its Chief Justice and four other senior most
judges of that court. Names recommended for appointment by a High Court
collegium reaches the government only after approval by the CJI and the Supreme
Court collegium.
Judges of the higher judiciary are appointed only through the collegium system —
and the government has a role only after names have been decided by the
collegium. The government’s role is limited to getting an inquiry conducted by the
Intelligence Bureau (IB) if a lawyer is to be elevated as a judge in a High Court or
the Supreme Court. It can also raise objections and seek clarifications regarding the
collegium’s choices, but if the collegium reiterates the same names, the
