Supreme Court Advocates-on-Record Association and another v. Union of India (2015)

Module III asks how judges of the Supreme Court are appointed, and it is the one question on the syllabus where a printed text of the Constitution can lead a student straight into error.

A printed Art. 124(2) may still carry the clause requiring appointment on the recommendation of the National Judicial Appointments Commission referred to in Art. 124A. That is not the law. This judgment struck the amendment down. A student who reproduces that clause from the page, without the footnote beside it, states struck-down law as current — the single most expensive mistake available on this topic.

The case also belongs to the independence-of-the-judiciary question. It is the modern instance of a court holding that the manner of appointing judges is not at the disposal of ordinary constitutional politics.

The Constitution (Ninety-ninth Amendment) Act, 2014 substituted Art. 124(2) so as to require that judges of the Supreme Court be appointed on the recommendation of the National Judicial Appointments Commission referred to in the newly inserted Art. 124A. The same amendment omitted the first proviso to Art. 124(2), which had required that in the case of appointment of a judge other than the Chief Justice, the Chief Justice of India shall always be consulted.

The amendment was challenged before the Supreme Court.

By its judgment dated 16 October 2015, the Supreme Court struck down the Constitution (Ninety-ninth Amendment) Act, 2014.

Two consequences follow, and both must be stated together in an answer.

1. The substituted clause requiring appointment on the recommendation of the National Judicial Appointments Commission has no effect, and Art. 124A falls with it.
2. The omitted first proviso is revived. The Chief Justice of India must always be consulted on the appointment of a judge other than the Chief Justice.

The operative rule is therefore the pre-2014 one: appointment by the President after consultation with such judges of the Supreme Court and of the High Courts as the President deems necessary, with the Chief Justice of India always consulted, as worked out in the collegium decisions.

This course does not set out the Court's reasons, and nothing should be invented for them. What can properly be said in an answer is the structure of the result: an amendment to the Constitution was held bad, and the provision it had displaced revived on its falling — so the amendment is treated as never having displaced the earlier text, and the pre-existing scheme of consultation stands as the law.

If a question asks for the grounds of the decision, say what the course establishes — the amendment was struck down and the proviso revived — and argue the issue from the constitutional materials this paper does give you: the devices securing the independence of the judiciary, and separation of powers under Art. 50.

Whenever you state Art. 124(2), give three things in one breath: the Ninety-ninth Amendment of 2014, this judgment of 16 October 2015 striking it down, and the revival of the proviso requiring that the Chief Justice of India always be consulted. That sequence is itself the mark the examiner is looking for.

Use it as a worked example on independence of the judiciary, alongside the seven constitutional devices, and on separation of powers under Art. 50.

Use it, too, as the modern answer to the colonial material in Module I. Cossijurah's Case and the Trial of Raja Nandakumar show what follows when the executive controls, or collaborates with, the bench; this judgment is the constitutional position that the composition of the bench is not for the executive to reorganise at will.

What it does not decide, so far as this course establishes: it settles the fate of the Ninety-ninth Amendment and the text of Art. 124(2). It gives you nothing about the working of the collegium in any particular appointment, and you should claim nothing about it.