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IN THE SUPREME COURT OF INDIA

(EXTRA ORDINARY ORIGINAL JURISDICTION)
I.A. No. 10 OF 2015
IN
WRIT PETITION (CIVIL) NO. 13 OF 2015

SUPREME COURT ADVOCATES ON RECORD

ASSOCIATION

...PETITIONER
VERSUS

UNION OF INDIA & ORS.

...RESPONDENTS

AND IN THE MATTER OF

ASHISH DIXIT

...INTERVENER

RESPONSE SUMISSIONS BY RAM JETHMALANI SENIOR

ADVOCATE TO THE SUBMISSIONS OF THE ATTORNEY
GENERAL, REPRODUCED IN PART II OF HIS WRITTEN
SUBMISSIONS.

1. The very head note of Para D. is misleading and it shows that

the learned Attorney General (hereinafter called AG) is on the
wrong track throughout. The independence of the Judiciary
is not subject to any checks and balances which are under
control of the Executive this formulation of the AGs case is wholly meaningless.

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2. In the next two paras the AG concedes that the independence of

the Judiciary is recognised as the basic feature of the
Constitution and yet in some later paragraphs he goes back
even on this. This checks and balances approach is a wholly
useless and erroneous venture. Reference in para 3 to the
Indira Gandhi judgement of 1975 is irrelevant. In fact all
decided cases in which Article 50 is not properly interpreted
and applied are wholly irrelevant to the major central issue in
this matter.

3. In Para 4, he refers to Para 50, 56 and 331 of the second judges

case, taken out of their context. I have already explained in
what context the paras must be understood.

I have no

quarrel with the paras quoted, except that it is a matter of

importance that notice should be taken of the final two lines
which read so as to secure and strengthen the imperative
confidence of the people in the administration of justice. The
AG has not understood the importance of these two lines.
The biggest litigant is the state. It habitually makes orders
which are inconsistent with part III of the Constitution and
also Part III and IV read together. The law minsters presence
with a vote and the power to canvas with other members of
the commission with the enormous resources of the state

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behind him, unfortunately creates a reasonable apprehension

in the mind, of a fighting the government before a judge who
got appointed with the vote of a Cabinet Minister may well
feel that the judge will be reluctant to displease the
government. The Minister is likely to defer to the executive
interests and desires. His participation in the appointing
process is highly likely to destroy or diminish his confidence
of the litigant in the administration of justice which these two
lines make an imperative requirement.

4. Para 31 of Justice Kuldeep Singh is irrelevant. The statement of

law reading independence of judiciary is the basic feature of
the Constitution is an absolutely correct proposition. The
petitioners contention is that the independence of the
judiciary is inconsistent with the reasonable apprehension in
the mind of the litigant asserting his fundamental rights that
a Judge who owes his appointment at least partly to
Executive concurrence may well be influenced by wrong
cabinet policies actions or decisions.

5. I have no quarrel with para 5.

6. The authorities cited in para 6 only strengthen the petitioners

arguments.

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7. Para 6(a) is misunderstanding of Article 50 of the Constitution as

explained in the second and third judges case. So far as the
role of the executive is concerned no one has any objection to
the Executive expressing its opinion and the evidence on
which that opinion is a based, to the Chief Justice but it
cannot participate more than that in the final decision
making process which must be exclusively of the judiciary.
8. It is somewhat curious that after 6(a) one expects 6(b), instead
we have new para 7.

9. Para 7 shows that Justice Bhagvati in the first judges case did
not consider Art. 50 of the Constitution at all nor the debates
on the original Article 29(A) of the draft Constitution I suspect
he knew about its relevance but deliberately did not touch it
because he certainly did not display great independence in
the Jabalpur case, not very long ago.

10.

The reference in para 8 to the judgment of Justice

Venkatramaiah in the first judges case does not help, the
AGs argument. The views expressed are Orbiter Dictum
and not a ratio. In any event the role of the Executive like
that of other members of the Commission should be to supply
information and argument for a particular appointment but

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the final decision must be the act of the Judiciary or the

Chief Justice. Even Venkatramaiahs opinion takes no note of
Article 50 and therefore deserves no serious attention.

11.

Para 9 is irrelevant. Justice Ravindran unfortunately

regards pressure from the Executive as a mundane thing.
What he means thereby is difficult to understand.

12.

In para 10 the Sankalchand Judgment of 1977 is referred

to. This judgment did not deal with appointment but
transfer of a judge already appointed. Correctly understood,
Sankalchand Judgment is against the AG. It refers to Art.
50, which qualifies every other word or sentence in the
judgment.

13.

In para 11 the reference to Krishna Swami Judgment is

almost irrelevant and is of no value. So also Para 12 is again
Irrelevant. It does not deal with the issue involved in this
case.

14.

Para 13 is again irrelevant. It is not the petitioners case that

there is no other Article in the Indian Constitution to
promote Judicial Independence.

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In Para 13(b) it is only the AGs verdict or claim it does not

arise out of any decided case.

15.

Para 14 with all its 4 sub clauses is what the AG believes

but which is not law declared by the Supreme Court. The
law declared under Art. 141 of the Constitution in the
second judges case is binding on everyone and any attempt
to alter it by any legislation is a futile action and complete
nullity.

16.

In para 15 there is a useless reference to questions, the

answers to which are too well settled to need any
contribution from the AG. Para 16 and 17 are also useless.

17.

All the arguments and submissions made in para 18,

19,20,21,22,23,24,25 and 26 are irrelevant and wrong. In
para 27 the AG almost concedes the petitioners case. It
contains an admission that the power of appointment is as
important as complete freedom of decision making on facts,
honestly and accurately determined according to the rules of
evidence and the correct law applied thereto.

18.

Paras 28,29,30,31 contain a wrong philosophy altogether.

No one has argued that judges independence means

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unqualified freedom of action. It is law, the Constitution and

of course the conscience and character of the judge that
matter. All that is wholly irrelevant to the issue before this
Honble court. The law declared in the second and the third
Judges cases of 1993 and 1998 has concluded the issue
against the union of India and the AG. Most of the paras are
just a waste of time.

19.

Para 40 starts with the following 5 lines The sequitur from

the analysis thus far is that the notion of the independence
of the judiciary is a structural phenomenon in the context of
the Constitution that consists of a network of provisions,
laws, practices and principles which have been adhered to,
not just by the legislature but also by the judiciary itself to
uphold and maintain its independence. So far as I am
concerned I confess that this is unintelligible jargon. But it
does contain an admission that appointment is also one of
the features which tells upon judicial independence. Though
there are other provisions also which make a judge immune
from executive harassment but it is at the stage of
appointment that quality of complete intellectual excellence,
integrity, and character have to be taken care of. Human
foresight cannot be infallible. It is possible a judge may lose

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his character afterwards. His intellectual and judicial

inadequacies my come to be discovered later. Errors of
judgment can be possible in the present system as well.
Absolute perfection cannot be guaranteed by any human
being or group of humans. It is the petitioners case that the
system which was being followed before the Second Judges
case, was a system which produced the atrocious Jabalpur
Judgement and the minority judgment in the Keshavnanda
Bharatis case. The collegium system created by the second
and third judges case is a vast improvement. The AG with
his private knowledge about bad judges is entitled to have
his own opinion but speaking for me, I have not seen a
single judge who can be compared with the worst judges
produced by the earlier system. The personal assertion of
the AG is not supported by any admissible evidence and
cannot influence the decision of this case.
Even in para 40 there is a confession that independence of
the Judiciary is located in the appointment of Judges,
though there may be other aspects as well.
Another unintelligible statement is the following in the same
para Further it is not a monolithic concept that mandates
insulation of the Judiciary in all its functions but operates
as part of a larger framework of separation of powers and

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rule of law. The Article 50 as construed by reference to

relevant debates of the Constituent assembly effectively
described by Justice Pandian in the second judges case is
binding on the AG and the government that he represents.
Separation means separation. If the Law Minister has
expressed himself in the matter of appointment, it is in
violation of the separation mandated by the Article 50.
Submissions made in para 40, 41 and 42 do not require any
serious consideration which is just a waste of time. The
Constitution has never used the words checks and balances
in the context of Article 50 and 51A and it is the AGs
invention.

20.

Para 42(b) does not make any sense in law and on facts.

21.

Para 43 suffers from the same infirmity. The quotations in

para 43,44 and 45 are totally irrelevant

as they have

nothing tom do with article 50 of the Constitution r/w 51(A)

and the law declared by the second judges case.

22.

Reference to cases in Para 46 is irrelevant and unnecessary.

It is well known that the Supreme Court can strike down the
law made by the parliament on the ground that it violates

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the Constitution or is an unreasonable restriction of the

citizens Fundamental Rights particularly those arising out
of Article 19 and 21. The petitioner only relies upon the
majority

Judgement

in

Keshavnanda

Bhartis

case

particularly para 292 of the judgment of Chief Justice Sikri.

The expression checks and balances used in para 577 after
Keshavnanda Bhartis judgment does not refer to any
construction of Article 50 of the constitution. The decisions
of the Executive as well as Parliament are liable to be set
aside by decisions of the High Courts and the Supreme
Court. That itself shows that Article 50 refers to different
kind of separation. Judges do not appoint ministers nor
MPs. The parliament does not appoint the Judges, nor does
the Executive appoint them, except in an extremely formal
sense. The essence of power must wholly rest in the
Judiciary though the Judges must be informed by other
qualified sources like the Bar, the academic world and the
world of social sciences. If this is understood reference to
paras 50, 51,52,53,54,55,56,57,58,59,60,61,62 and 63 is
irrelevant and waste of time.

23.

Proposition number 3 at page 26 does not make any sense.

If a particular part of the Constitution is a part of the basic

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structure it must be left alone and cannot be altered,

modified

or

repealed.

The

enunciated

proposition

is

meaningless.

24.

Paras 64, 65, 66,67,68,69 and 70 contain a wrong statement of

law based upon a misunderstanding of a 2012 Judgment.
The observations quoted there are irrelevant to the present
controversy. The quotations from professor Tribe have no
relevance. Each of these paras contain an admission that
Judicial Independence is a key value. The framers of the
Constitution considered it basic to our constitutional
scheme.

25.

The statement of law in Para 71 is the case of the

Petitioners. The Para 71 which seems to sum up the AGs
argument contains the very contention the Petitioners are
wanting

to

make.

The

petitioner

submits

that

the

Independence of Judiciary will be gravely compromised if the

main litigant appoints or has a significant power of
appointment of the judges who decides the dispute between
a citizen and the opposing litigant : corruption of Politicians
is notorious and the apprehension of injustice and lack of
absolute impartiality is a highly reasonable phenomena.
Part E of the AGs submission at page 32 can be briefly

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disposed of. The Very proposition enunciated is wholly

contrary to the binding judgment in the second judges case.
This argument should not be entertained and is a contempt
of Court.

26.

In Para 73, the AG concedes that the concept of primacy of

the Judiciary in the matter of appointment is pursuant only
to the second judges case. The AG is right in the reading of
the case. He wants that case to be reconsidered.

Our

submission is that it is binding on this Court. A judgment of

a larger bench, unless it is Per In curium, cannot be ignored
and any attempt to ignore it and or even pleading that it
should be ignored is manifest contempt. This should not be
encouraged at all. The AG may not consider himself bound
by any Supreme Court judgment but on the law of
Precedent, a smaller bench is bound by the decision of a
larger bench. It is the Petitioners feeling that this Honble
Court has refused to refer this case to a larger bench. Even
if it has not been done, no effort should be

made to do it

because what this bench is being asked to do is that Art.

124 and 217 do not exist.
reason of a void statute.

They cannot cease to exist by

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27.

Para 74 of the submissions does not take into account what

happened and what compelled the inclusion of Art. 50, at
the last stage of the finalization of the draft constitution. The
distinguished

members

of

the

Constituent

Assembly

including Dr. Babasaheb Ambedkar had all assumed that

we

were

importing

into

India

the

British

model

of

government. This is the understanding of this Hon'ble Court

in Shamsher Singh's Case1 (See Para 106 of the concurring
judgment by V.R. Krishna Iyer. J.) That is why even when
the constitutional Article provided that the Council of
Ministers will aid and advice the President, it was assumed
that the British model which considers the aid and advice of
government binding on the British Monarch will be the law
of India too. This was decided by the Constitution Bench in
the Sventies. Everyone knew one thing- that in England all
appointments of Judiciary were being made by the Lord
Chancellor of England who was the highest judge of the UK.
It is only one of the curious anachronism of the British
Model where conventions of the Constitution are treated as
law and the Highest Judge of the Country was also a
member of the cabinet. But the appointments were made in
his capacity as a senior most Judge and not as a minister of
1

(1974) 2 SCC 831

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the crown or member of the cabinet. We were however

drafting a fresh written constitution in which there was no
room for convention which must get into the written text. If
the Council of Ministers of India by the written text of the
Constitution only gave aid and advice to the President, it
may not have been easy by judicial decision, to import the
British Convention. It is therefore that certain members of
the Constituent Assembly reminded our constitution makers
that we have to separate the Judiciary from the Executive. A
brave Supreme Court however in the famous Shamsher
Singh's Case (supra.) case ruled that the British Convention
was binding in India and the aid and advice of the Ministry
was Binding on the President but since Article 124 or 217
did not in express terms vest the power of appointment of
judges in the judges themselves the constituent assembly
brought about the result by the amendment of Article 39(A)
in the draft Constitution which became Article 50. This
happened on the assurance of Pandit Nehru that the centre
will enforce it immediately but in the provinces there may be
some difficulty and sometime maybe required by the
provinces . However Article 39(A) was passed without any
reference to time for enforcement being mentioned which
had been initially introduced in the text. Article 124 and 217

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must

therefore

be

read

as

subject

to

Article

50.

Unfortunately even Nehru also forgot the promise he made

on 25th November 1948. There were some weighty reasons
for this loss of memory. The Bar too had forgotten it. Few
members however, after their emergency experience wanted
to destroy Executive interference of any kind in the
appointment decision. They may advise and argue but the
advise was not binding on the Judiciary. In a sense the AG
is right.
apparent

That in a written Constitution this should be

from

the

provision

of

the

Constitution

unfortunately for him Article 50 makes it as apparent as

required by him but AG does not see it right.

28.

Art. 50 is also a provision of the Constitution and being a

directive

principle,

it

is

fundamental

principle

of

Governance of the nation. Art. 51 (A) makes it completely

binding and

enforceable by the Judiciary itself.

Justice

Verma in the passage quoted in Para 75 concludes this by

process of his judicial reasoning but the law is that if
another concurring Judge has given other reasons too, then
they too are binding on all the Judges unless someone
expressly dissents

from a particular reason.

Justice

Vermas judgment must therefore be read along with the

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judgment of Justice Pandiyan and his enunciation of Art. 50

that the Constituent Assembly by that article expressly in
few words preserves the primacy of the Chief Justices
consider decisions.

29.

The primacy of the Chief Justices, decision in the matter of

appointment of a particular judge was thus a part of the
Constitution when enacted. The Bar discovered this when
they got experience of bad Judges being appointed mainly in
first notorious emergency of the 70s. What the AG requires
is fulfilled by the presence of Art. 50 in the original
Constitution when passed.

30.

Para 79 hardly makes any sense. At the end of para 79, the
two statements of Law marked as (2)
completely
Constitution

legal

mystery.

which

alters

Any
the

at page 36 are a

amendment

basic

feature

of

the

of

the

Constitution is void and non est.

31.

Para 80 is a very untenable argument which should not

engage the attention of this Honble Court.

32.

The submissions made at para 82, 83 and 84 are totally

futile attempts to get out of a historical and wholly beneficial

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judgement.
organised

The credit of obtaining it must go to the

Bar.

It

is

surprising

that

even

when

the

corruption of the previous UPA regime has been largely

exposed by judicial actions in firmly dealing with various
scams, the beneficiary of the judges contribution should
invite executive power in the process of appointment of
Judges. This unconscionable move of the new existing
regime to dilute judicial independence deserves to be
condemned and exposed.

33.

One can easily skip all the paras upto 91 and then comes
the

following

proposition

advanced

by

desperate

Government as No. 3 on page 41. In any event primacy of

the Judges, comes out all right as the basic feature of the
Constitution.

34.

All arguments from para 92 onwards in support of this

unfortunate and diabolical submission are just a waste of
the time of this Court. The AG has not read the Constituent
Assembly debates and if he has, he has not understood
them. The proposition (b) at the end of para 97 on page 45
is a childish distortion of the true position. The AG has
finally admitted that Art. 50 exists in the Constitution.

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The case in which the reference was made to a larger bench

which decided the second judges case is wholly irrelevant.
The question is what submissions were made to the larger
bench and how the law was declared by it. It is binding on
everyone in the country including the present government.
35.

Merely because the present system is the result of the

second and third Judges cases, it does not mean that the
five Judge bench can sanction a Law which interferes with
the basic feature of the Constitution. It is basic, not only
because it is declared basic but because it was intended to
be basic when the Constitution was framed

and passed.

Proposition marked at the end of Para 103 at page 52 is

another legal absurdity which the Petitioner suspects has
been thrust on the new Government by the AG himself.
There was no reference to some immediate disaster which
the second and third Judges case are producing or on
which a big debate had taken place amongst an agitated and
educated people, which clearly shows that the change is
urgently required by the Nation. This is wishful thinking of
the Government which the AG represents. It is a matter of
shame that the AG should suggest to us to copy a system
prevailing in Pakistan, Nigeria or Sri Lanka.

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36.

In Para 106 (b) the AG seems to tell us that in 15 countries

the Executive is the final or determining authority. This is
what he wants India to do. To say the least, this is
disgraceful. I suggest that this Honble Court should express
its anger and contempt for such a submission. India would
do what Dr. Ambedkar, Nehru and other galaxy of patriots
and constitutional experts wanted to be done in India. It is
a matter of shame that what is sought to be done is what
the late Indira Gandhi did with our judiciary during the
notorious emergency initiated by her diabolical advisors.

37.

All the remaining paras are designed to destroy juridical

independence and no wonder that in para 112 (a) the
Government of Prime Minister Modi, without any popular
mandate should follow the evil precedence set up by the late
Indira Gandhi.

38.

The Respondents have unnecessarily criticized the Second

and Third Judges Case whereas the renowned jurists
worldwide have complimented the dictum laid down by
these cases. See Article: The Supreme Court and the
Constitution authored by Lord Templeman published in the
book Supreme but not Infallible, Oxford publications.