This article is written by Prashant Gupta and updated by Syed Owais Khadri. This article provides a comprehensive study of the ruling rendered by the Hon’ble Supreme Court in Supreme Court Advocates on Record Association and Ors. vs. Union of India(1993). It delves into the facts, arguments, judgement, and reasoning in detail. It also sheds light upon the point of law involved in the case. Additionally, the article also attempts to provide a detailed analysis of the judgement.

Introduction

A lot of disagreements have been witnessed between the judiciary and the executive in recent times. While the judiciary is unhappy with the abeyance of the executive or its non-obedience in making judicial appointments of the names recommended by the judiciary, the executive has been stubborn to continue its actions. In fact, the executive has started criticising or attacking the collegium system very aggressively. The remarks made by the law minister addressing the collegium system as an alien concept to the Constitution have started a new debate in this regard. Similar statements were made by other members of the executive as well.

However, it is important to note that the collegium system has not been expressly mentioned in the Constitution but has evolved through the judicial precedents in various cases. The collegium system was first established after the case of Supreme Court Advocates on Record Association and Ors. vs. Union of India(1993) and was later strengthened in the third judge’s case. This article discusses the case mentioned above which led to the establishment of the collegium system. 

The instant case was a plea for reconsideration of some of the key issues relating to judicial appointments wherein the Hon’ble Supreme Court overturned the decision rendered by itself in S.P. Gupta vs. Union of India (1982). It also devised a specific procedure for the appointment of Judges of the Supreme Court in the interest of “protecting the integrity and guarding the independence of the judiciary”  which is now known as the collegium system. For the same reason, the primacy of the Chief Justice of India was held to be essential. The case is based on the independence of the judiciary as part of the basic structure of the Constitution. This case is famously known as ‘Second Judges Case”. To secure the ‘Rule of Law’ which is essential for the preservation of the democratic system and the separation of powers which is adopted in the Constitution with the directive principles of ‘Separation of judiciary from the executive’, the case was decided on 6th October 1993.

Details of the case

The following are some of the important details of the case discussed in this article-

• Case Name: Supreme Court Advocates on Record Association and Ors. vs. Union of India(1993) (hereinafter referred to as the “Instant case” in this article)
• Case No.: Writ Petition. 1303 of 1987 (along with Writ Petition. 156 of 1993)
• Parties to the case:
  • Petitioner(s): Supreme Court Advocates on Record Association and Others.
  • Respondent(s): Union of India.
• Equivalent Citations:  AIR 1994 SC 268, (1993) 4 SCC 441
• Court: Supreme Court of India
• Bench: Justices. S. Ratnavel Pandian, A.M. Ahmadi, Kuldip Singh, J.S. Verma, M.M. Punchhi, Yogeshwar Dayal, G.N. Ray, Dr. A.S. Anand, and Dr. S.P. Bharucha.
• Judgement Date: 6th October, 1993
• Ratio of Judgement: 7 (5 Majority + 2 Concurring): 2 (Dissenting)

Background of the case

The matters relating to the appointment of the judiciary have plagued and perplexed the judicial mind ever since the inception of the Constitution. This matter has to be resolved by the interpretation of the constitutional provisions relating to the appointment of the judiciary. A delicate balance had to be struck between democratic control of an essentially undemocratic institution and impartial arbitration.

The matter came up for adjudication in Sankal Chand vs. Union of India (1976), where the court upheld the transfer of the Chief Justice of Himachal Pradesh. However, by 1982, the debate had reached epic proportions. These matters took solid form in a batch of writ petitions questioning the move to transfer the judges challenging the affected transfer of some judges and demanding the justifiability of judge strength.

The development of these issues started from the case of S.P. Gupta vs. Union of India (1982) and was followed by Subhash Sharma and Ors.vs. Union of India (1990) where it was ultimately referred for a larger bench which is the instant case. The development of the issues or the case has been discussed below in detail.

S.P. Gupta vs. Union of India (1982)

• This case involved a challenge to a circular issued by the Union Law Ministry prescribing the appointment of additional judges in various High Courts.
• Multiple writ petitions were filed before different High Courts across the country challenging the Constitutional validity of circular prescribing appointments. 
• In the meantime, an order prescribing the transfer of certain judges was also issued. The Constitutional validity of the transfer orders was also challenged by filing writ petitions. 
• All these petitions were transferred to the Hon’ble Supreme Court under Article 139A of the Constitution. 
• Additionally, a writ petition under Article 32 was filed before the Hon’ble Supreme Court challenging the transfer order and another Special Leave Petition was also filed in the same regard.  
• Therefore, the Hon’ble Supreme Court decided to hear all the matters together by forming a Constitution Bench with the writ petition filed by Mr. S.P Gupta as the lead petition.
• The case involved pertinent questions of Constitutional importance with the most important ones relating to the independence of the judiciary. Various other significant issues were framed and adjudicated in this case. However, two key issues to note from this case are namely,
  • The primacy of the opinion of the Chief Justice of India in matters relating to judicial appointments; and
  • The justiciability of fixation of judge-strength.

The Hon’ble Supreme Court in this case ruled that the Chief Justice of India did not enjoy a primacy of opinion over the other Constitutional functionaries mentioned in provisions relating to judicial appointments. The Court had also ruled that a mandamus cannot be issued to the government/executive to secure the fixation of judge-strength in High Courts. It held that the matter of judge-strength in High Courts was not a matter that could be decided through judicial review.

Subhash Sharma vs. Union of India (1990)

The decision rendered in S.P. Gupta vs. Union of India (1982) concerning the two issues mentioned above was followed by criticism and controversy and then ultimately by three writ petitions praying for a mandamus for filling up the vacancies across various High Courts. One of those petitions was filed by Mr. Subhash Sharma and one was filed by the Supreme Court Advocates on Record Association and there was also another petition in the same regard. All three petitions were clubbed under the lead petition by Subhash Sharma as Subhash Sharma vs. Union of India (1990).

The Court, in this case, disposed of the first and last petition after an assurance was given by the Attorney General regarding the timely filing of the remaining vacancies in the High Courts. However, the second petition was referred to a nine-judge bench for examination or reconsideration of the two key issues mentioned above. This reference ultimately led to the instant case before a nine-judge bench. 

Facts of the case

The instant case was before the nine-judge bench of the Hon’ble Supreme Court for examination of issues of Constitutional importance relating to judicial appointments. It is important to revisit and note the facts, and background of the issues that brought the instant case before the nine-judge bench. The facts of the case are discussed below in detail.

• The instant petition was filed in 1987 by the Supreme Court advocates on record association for filling up the vacancies of judges in the Supreme Court as well as various High Courts. Alongside, another PIL was filed by Subhash Sharma, an advocate of the Supreme Court praying for the same relief.
• A three-judge bench noted the instant petition while it was dealing with the PIL filed by Mr. Subash Sharma in Subhash Sharma and Ors. v Union of India (1990). The three-judge bench passed an order directing the said case, along with the instant petition and other connected matters to be placed before the Chief Justice of India.
• The reference to the Chief Justice was for the constitution of a nine-judge bench for the examination of issues involved in the immediate case mentioned above. The said cases involved issues of Constitutional importance relating to judicial appointments and hence it was referred to a larger bench.
• The referring bench (three-judge bench) made the order since it was of the view that the correctness of the decision rendered by the majority view in S.P. Gupta vs. Union of India (1982) required reconsideration by a larger bench. The main questions of law or the issues that required reconsideration as per the order of the three-judge bench have been mentioned below.
• However, at this juncture, the Constitution (67th Amendment) Bill, 1990 was introduced in the parliament seeking to amend articles 124(2), 217(1), 222(1) and 231 (2) (a). This bill was brought to empower the president to set up a judicial commission known as the National Judicial Commission. The avowed objective was to implement the 121st Law Commission Report. This report recommended that a judicial commission be set up to oversee the appointment of the judiciary. However, nothing came of this as the bill lapsed with the dissolution of the 9th Lok Sabha. The writ petitions seeking a review of the S.P Gupta case were heard by a three-judge bench, namely Chief Justice Ranganath Mishra and Justices MN Venkatachaliah and MM Punchhi, which recommended reconsideration.

Issues raised

Although the case involved various questions relating to the independence of the judiciary, separation of powers, functions of the president under various Constitutional provisions, interpretation of various terms such as aid and advice, recommendation and consultation from various Constitutional functionaries, formulated two issues were formulated as the primary issues by the judges delivering majority ruling. The main issues that were formulated for adjudication are as follows.

1. Whether the opinion given by the Hon’ble Chief Justice of India concerning the appointment or transfer of judges of the Supreme Court and High Courts hold primacy over the opinion of other functionaries or not?
2. Whether such matters including the matter of the fixation of the judge-strength in the High Courts are justiciable?

The point of law involved

It is vital to understand the relevant legal provisions concerning the issues in any case for the appropriate analysis of such issues. The relevant legal provisions discussed or examined in the instant case are discussed below.

Constitution of India 

The instant case revolves around the issue of the appointment of judges and the involvement of the executive or the parliament in the judicial processes or affairs etc. The relevant provisions of the Constitution of India noted in the instant case are as follows.

Article 12 of the Constitution

Article 12 of the Constitution is an important provision concerning fundamental rights as it lays down the definition of the “State” wherein it defines the term “the State” includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.”

This provision is vital as it lays down the authorities against whom fundamental rights under Part III of the Constitution can be enforced or the authorities on whom the duty to promote and protect the fundamental rights is imposed.

The definition of “State” under this provision is also applicable to Directive Principles of the State Policy under Part IV of the Constitution as per Article 36 of the Constitution

The Hon’ble Court in the instant case noted the provision under Article 36 and observed that the definition applies to the entire Part IV and hence “the State” in Article 50 has to be interpreted in a distributive sense to include all the authorities mentioned in its definition such as the government, local and all other authorities under the control of Indian Government. Accordingly, it further observed that the examination of the concept of separation of the judiciary from the executive cannot be limited to the subordinate judiciary while disregarding the higher judiciary.

Article 13 and Article 368 of the Constitution

It is vital to discuss both provisions together since they are closely interconnected and are of great significance from the perspective of Constitutional law.

Article 13 of the Constitution

Article 13 of the Constitution invalidates any ‘law’ that is in contravention of Part III of the Constitution. It also prohibits the State from making ‘laws’ that violate or take away fundamental rights and if made, such laws would be invalid under this provision.

However, Clause (4) of this Article lays down an exception to invalidity. Article 13(4) provides that the rule of the invalidity of laws if they’re in contravention of Part III of the Constitution would not apply to the amendments made to the Constitution under Article 368 of the Constitution.

Moreover, it is interesting to note that Article 13(3)(a), which defines the term “law” does not include an amendment within its definition, but it is also important to note that the definition provided under the said sub-clause is an inclusive definition and not an exhaustive one.

Article 368 of the Constitution

Article 368 empowers the Parliament to make amendments to the Constitution by adding, repealing, or changing any of the provisions in the Constitution. Article 368(3) is similar to the provision under Article 13(4). It exempts the application of the rule under Article 13 to amendments under Article 368.

This uncertainty and lack of clarity concerning the scope of the power possessed by the parliament to make amendments under Article 368 of the Constitution led to a crucial debate regarding the said Constitutional issue.

Basic Structure Concept

This Constitutional issue was debated for a long period of time in various decisions including Shankari Prasad vs. Union of India (1951), Sajjan Singh vs. State of Rajasthan (1964), and Golaknath vs. State of Punjab (1967), and was ultimately settled in the landmark decision in Kesavananda Bharati vs. State of Kerala (1973) wherein the Hon’ble Supreme Court propounded the Doctrine of Basic Structure of the Constitution.

The Basic Structure Doctrine simply states that the Parliament has the power to make amendments to the entire Constitution including the fundamental rights under Part III of the Constitution, but such amendments should not be in contradiction or violation of the basic principles of the Constitution such as Equality, Justice etc. It does not provide an exhaustive list of the principles that are to be considered fundamental to the Constitution but provides a subjective idea of what can be included under the doctrine. It basically refers to the spirit of the Constitution.

Article 32 and Article 226 of the Constitution

These provisions are of great significance as they provide a mechanism or remedy for the enforcement or protection of the rights of individuals. While the former provides such a mechanism before the Hon’ble Apex Court, the latter does it before the High Courts at the state level.

Article 32 of the Constitution

Article 32 of the Constitution guarantees the right to Constitutional remedies. It guarantees the right to directly approach the Hon’ble Supreme Court for the enforcement of other fundamental rights or in case of violation of any of the fundamental rights guaranteed under Part III of the Constitution by filing a writ petition.

Article 226 of the Constitution 

Article 226 confers the High Courts with powers, similar to those provided under Article 32 of the Constitution. It provides a remedy for individuals to approach the High Court by filing a writ petition for enforcement of his/her rights. Any person aggrieved by the violation of the fundamental rights enshrined under Part III of the Constitution can approach the Hon’ble High Courts for the enforcement of their rights under this provision.

However, it is important to note that the scope of this provision is wider than that of Article 32 of the Constitution. Article 226, unlike Article 32 doesn’t limit its scope to enforcement of fundamental rights but extends beyond it. Clause 1 of this provision ends with the phrase “….for the enforcement of any of the rights conferred by Part III and for any other purpose.” The words ‘any other purpose’ are not incorporated under Article 32, which makes the scope of this provision wider than Article 32. Therefore, any person can approach the High Courts for enforcement of rights other than fundamental rights as well, which is not possible under Article 32. Moreover, Article 226 doesn’t restrict itself against the ‘State’. It is clarified in Clause 1 that the High Court, under this provision possesses the power to issue writs against any person or authority which also makes the scope of the provision wider.

Article 50 of the Constitution

Article 50, falls under Part IV of the Constitution which includes the Directive Principles of State Policy. The provision mentions the concept of the separation of powers. The provision imposes a duty on the State to implement the concept by ensuring the judiciary is separated from the executive. It calls for the State to take measures to separate the judiciary from the executive in the public services of the State.

Provisions relating to the establishment, constitution, and appointments of the judiciary

The establishment and composition of the Supreme Court and High Courts and the appointment of judges in these Courts have been laid down under various Constitutional provisions.

• Article 124 provides for the establishment and composition of the Supreme Court. It contains provisions relating to the appointment, qualifications, and removal of judges of the Supreme Court.
  • Clause 2 of this provision prescribes the appointment of the Supreme Court judges by the President. 
  • Clause 3 prescribes the qualifications for a person to be appointed as the judge of a Supreme Court.
  • Clause 4 prescribes the procedure for the removal of a judge of the Supreme Court. It provides that the removal is to be done by the President after an address and voting for such removal in the Parliament.
• Articles 126 and 127 respectively prescribe for the appointment of Chief Justice and Ad hoc judges in the Supreme Court by the President. Likewise, Articles 223 and 224 respectively prescribe for the appointment of Chief justices and additional acting judges for High Courts by the President
• Article 214 prescribes a High Court in each State and Article 216 prescribes the composition of High Courts.
• Article 217 provides for the appointment of judges of the High Courts by the President. It also contains provisions relating to their qualifications and it also provides that the removal procedure would be the same as that mentioned in Article 121(4).
• Article 222 confers the power of the President to transfer the judges from one High Court to another.

Note: The current provisions state the appointments and transfers are to be done on the recommendation of the National Judicial Appointments Commission, but such provisions, while this case was being contested before the Supreme Court, provided for such appointments and transfers to be done with the consultation of the Chief Justice of India, judges of the Supreme Court and judges of the High Courts in the States if deemed necessary. The requirement of recommendation of the National Judicial Appointments Commission was inserted by the 99th Constitutional Amendment Act, but it was later struck down by the Hon’ble Supreme Court in Supreme Court Advocates on Record Association and Ors. vs. Union of India (2015).

• Article 233 prescribes the posting and promotion of the district judges to be made by the Governor of the State in consultation with the High Court of such state. It also provides the qualifications of a person to be appointed as a district judiciary. It provides that the appointment shall be made based on the recommendation made by the High Court.

All the provisions mentioned above reflect the role of the President in judicial affairs deviating from the concept of separation of powers.

Other Constitutional Provisions 

• Article 74 prescribes the duty of the Council of Ministers (headed by the Prime Minister) to aid and advise the President who is obligated to act in conformation with such advice. Similarly, Article 163 prescribes the duty of the Council of Ministers (headed by the Chief Minister) at the State level to aid and advise the Governor.
• Article 112 contains provisions relating to the annual financial statements of the consolidated fund of India and Article 113 provides for the procedure in the Parliament, relating to estimates of such funds mentioned in the previous provision. Likewise, Article 202 contains provisions relating to the annual financial statements of the consolidated fund of each State, and Article 203 provides for the procedure in the State Legislatures, relating to estimates of such funds mentioned in the previous provision

Article 112(3)(d) and Article 202(3)(d) prescribe the payment of remunerations, salaries, allowance, pensions, etc., to the judges of the Supreme Court, High Courts, and other Courts from the consolidated fund of India.

• Article 121 prohibits discussion on the conduct of any judges of the Supreme Court or High Courts in the Parliament. However, an exception to the said restriction is a motion addressed to the President for removal of the judge. Similarly, Article 211 prohibits any discussion on the conduct of the judges of the Supreme Court and the High Court in any of the State Legislatures.
• Articles 125 and 221 prescribe the provisions relating to the salaries of the Supreme Court and High Court judges respectively.
• Articles 129 and 215 declare the Supreme Court and the High Courts as the Courts of record.
• Articles 136, 137, and 145 lay down the various powers of the Supreme Court such as the power to grant special leave, the power to review the judgements, and the power to frame rules of the Court, etc.
• Article 141 makes the law made or declared by the Supreme Court binding on all other Courts.

Arguments of the parties

Numerous arguments were put forth by different counsels. The main subjects of the contentions involved were concerning the scope and extent of advisory powers under Articles 74, 124, and 217 of the Constitution, independence of judiciary and separation of powers, meaning of the term consultation mentioned in various provisions relating to the appointment of judges, the primacy of the advice amongst different functionaries and the fixation and justiciability of the judges’ strength in Courts. The contentions put forth by both petitioners as well as the respondents are briefly discussed as follows.

Petitioners

Several eminent counsels argued as the petitioners in the instant case but the leading arguments were presented by the Petitioner-in-person Mr. S.P. Gupta, and Mr. Fali. S. Nariman, and Mr. Kapil Sibal. They argued that the core issue in furtherance of which the contentions are being made is the independence of the judiciary. Additionally, Mr. Ram Jethmalani stated six reasons for the reconsideration of the decision rendered in S.P. Gupta vs. Union of India (1982) which are as follows.

• Lack of attention towards provision enumerated under Article 50 of the Constitution. 
• Principles of interpretation applied for the interpretation of the Constitution were those that were valid for statutes.
• The incorrect assumption that the President under Articles 124 and 217 is the same as that under Article 74.
• Wrongful denial of primacy to the Chief Justice of India on the ground that the judiciary is not accountable to the public since it is a non-elected office.
• Reliance upon inadmissible material in the form of speeches of the members of the Constituent assembly.
• The decision was rendered with a lack of care. (per incuriam)

The important arguments advanced by the petitioners were under the following heads.

Effect of the basic features of the Constitution on provisions relating to judicial appointments

• The counsel for the petitioner contended that the basic features of the Constitution including those under Articles 124(2) and 217(1) limit the scope of Article 74 in matters relating to judicial appointments and judicial independence.
• The petitioners pointed out the following as the basic features of the Constitution
  • The provisions under Articles 124(2) and 217(1) promote an effective, independent, and affirmative participation of the judicial authorities or functionaries.
  • The total separation of the judiciary from the influence of the executive and other branches of the government.
  • Other significant features such as the rule of law, judicial review, and the independence or separation of the judiciary as enumerated under Article 50 of the Constitution.
• They also contended that the independence of the judiciary doesn’t come into play only after the appointment but it also implies the process of judicial appointments.
• They further pointed out a statement made by Dr. B.R. Ambedkar concerning the process of judicial appointments wherein he had stated that the “judiciary must be free from the influence of executive and be competent in itself”.
• Furthermore, the counsel contended that the consultation with the Governor as mentioned in Article 271(1) is not a basic feature of the Constitution.
• They ultimately contended that the basic provisions of the Constitution restrict the scope of provisions to conform with the principal Constitutional structure. Moreover, if there is a conflict between two Constitutional provisions, the interpretation of those provisions has to be preferred which conforms with the basic principles or structure of the Constitution.

Intricacies of provisions under Article 74(1), 124(2) and 217(1)

• The petitioners contended that Article 74(1) prescribes two functions of the Council of Ministers one of which is not applicable in the process of judicial appointments since it is handed over to the judicial functionaries under Articles 124(2) and 217(1). The two functions of the Council of Ministers are as follows.
  • Advisory function i.e., to advice the President; and
  • Informative function, i.e., to aid the President.
• Accordingly, in matters relating to judicial appointments, the recommendation or consultation mentioned under Articles 124(2) and 217(1) is limited only to be rendered by the judicial functionaries. Besides, such recommendation or consultation restricts the scope of the advice given by the Council of Ministers to the President under Article 74(1).
• In simple words, the interplay between these three provisions is that, in matters relating to judicial appointments, the “advice” mentioned under Article 74(1) is substituted with the “recommendation/consultation with the judicial functionaries” under Articles 124(2) and 217(1). Therefore, in the process of judicial appointments, the only duty or function of the Council of Ministers under Article 74 is limited to only “aid” the President as the advisory function is carried out by the judicial functionaries as mentioned above.
• They contended that such exclusion or restriction of the advisory function of the Council of Ministers was to ensure the independence of the judiciary from the executive influence.
• They further contended that the provision under Article 124 must be interpreted in a purposive manner. This is because the requirement of consultation with the judges during the appointment process was intentional in appearance. They argued that consultation with judges other than the Chief Justice is mandatory as per Article 124(2).

Meaning and issue of consultation

• The counsel for petitioners contended that the deliberate requirement of consultation with Constitutional authorities i.e., the judicial functionaries was one of the Constitutional foundations for the principle of judicial independence.
• They contended that the term “Consultation” includes and implies advice as well. They further argued that such advice rendered by the person who is supposed or obligated to be consulted is binding upon the appointing authority.
• They contended that the main objective of the aforesaid requirement was to facilitate the identification of the most appropriate persons to be appointed as judges and not the persons who are merely qualified for such appointments. Such an identification can be done by someone who is expected to know the person qualified for appointments better than the appointing authority, who, in this case, are the judicial functionaries themselves.
• They contended that the obligation to consult is integrated with the power of appointment in a manner where such power could be exercised only with the performance of the duty of consultation with the persons specified under the provisions. They pointed out that this kind of integration is reflected in the provisions prescribing consultation.
• Additionally, they contended that the provisions under Article 124(2) and 217(1) only lay down the Constitutional authorities who are to be consulted during the process of appointments. However, these provisions do not prescribe a method or procedure for consultation or subsequent recommendation of appropriate candidates to be made. Hence, they argued that since the procedure has not been expressly prescribed, such recommendations must be carried out in accordance with the principle of judicial independence and must be free from the influence of the executive.
• Ultimately, they contended that the authority to recommend appropriate persons for appointments should rest only with the judicial functionaries. They argued all other Constitutional authorities should be consulted in a manner that will facilitate the following.
  • Promotion of judicial independence.
  • Expedient filling up of vacancies.
  • Ensuring the persons ultimately appointed are only those recommended by the judicial functionaries.

Question/Issue of primacy 

• The counsel for petitioners contended that none of the provisions relating to judicial appointments, particularly Articles 124(2) and 271(1) indicate any kind of primacy held by the Constitutional authorities mentioned in those provisions. They contended that such primacy has to be decided in accordance with the principle of independence of the judiciary from the influence of the executive.
• They primarily contended that the answer to the question of primacy must be understood as the primacy of judicial functionaries over the Council of Ministers. Such primacy is a fundamental feature of the Constitution and not the primacy of the Chief Justice of India
• They argued that, since the role of the Council of Ministers in the provisions is merely to aid, the only authority to be consulted is the judicial functionaries. Hence no question of primacy arises. They further argued that even if the Council of Ministers are considered to have an advisory role, such advice rendered by them must be in conformity with the advice of the judicial functionaries or should reflect the advice of the judicial functionaries.
• Furthermore, it was asserted that, within the judicial functionaries, the Chief Justice must be regarded as the ultimate spokesperson of the advice rendered by them since he is head of the Indian judicial functionaries.

Justiciability of fixation of judge-strength

• The petitioners contended that Article 216 does not allow subjective discretion to the President concerning the decision over the judges’ strength in the High Courts. It imposes an obligation upon the President to decide the strength of the judges in the High Courts to deal with the pending litigation. The President is obligated to make such a decision considering the objective criteria from time to time.
• They contended that the terms “may from time to time deem it necessary to appoint” under Article 16 reflects an obligation imposed on the President to constantly review or reconsider the strength of the judges in the High Courts.
• They also contended that the right to a speedy trial and justice under Article 21 of the Constitution must also be taken into consideration while interpreting the provision under Article 216. Such an interpretation imposes a fundamental duty on the State to constantly review and reconsider the judges’ strength in the High Courts to ensure speedy trial and justice.
• The petitioners contested the decision rendered by the Hon’ble Supreme Court in the case of S.P. Gupta vs. Union of India (1982) concerning the issue of justiciability of the judges’ strength wherein the issue was held as non-justiciable.

Respondent

The main arguments were presented by the Attorney General of India, who suggested a middle course by proposing for acceptance of the views of Hon’ble Justice Pathak in S.P. Gupta vs. Union of India (1982). Mr. K. Prasaran who was arguing on behalf of the Union of India argued for the affirmation of the majority opinion rendered in S.P. Gupta vs. Union of India (1982). The vital arguments advanced by them were as follows.

Independence of the judiciary

• The respondents contended that the post-retirement safeguards should be taken into consideration while evaluating or discussing the independence of the judiciary. They pointed out that the High Courts control the subordinate judiciary. Besides, the higher judiciary is protected by stringent provisions concerning the service conditions and processes relating to the higher judiciary.
• They contended that the appointment of judges is an executive function and executive power is held by the President and the Governor. As a result, the power to appoint judges is also held by them. However, such power is regulated by certain provisions mandating consultations with Constitutional authorities.
• They asserted that even in countries like the U.S. and Australia judges have no role in the process of appointment, but it cannot be said that the judiciary in those States is not independent.
• They contended that the Constitution also provides for the independence of the Comptroller and Auditor General of India. Even so, the process of his appointment is similar to that of the appointment of judges. The Comptroller and Auditor General of India is appointed by the President on the advice of the Council of Ministers. Accordingly, they argued that it is not necessary that the appointment must be based solely on the approval of the Chief Justice of India.
• The respondents argued that the mere existence of appointment power in a separate branch of the government or a different Constitutional authority does not imply that judicial independence has been hampered.
• They also asserted that the Indian judicial system is based on the English judicial system, where the judicial appointments are made by the executive. They argued that it’s unreasonable to replace or change the system which has worked so well till now.

Meaning and issue of consultation

• The respondents contended that the meaning of the term “consultation” is not the same as that of “recommendation”, “concurrence”  or “aid and advice”. 
• They pointed out that the two different terms recommendation and consultation have been used simultaneously in the same provision under Article 233. They asserted that the use of distinct terms in the same provision made it clear that the choice of distinct terms was deliberate.
• They argued that the term “consultation” under Articles 124(2) and 217(1) provides an effective meaning and conveys the exchange of views between various Constitutional functionaries.
• The respondents asserted that the Constitutional provisions cannot be interpreted in a manner that would contravene the language of the expressions used. Additionally, it can also not be interpreted in a way that would give any contradictory meaning to the words used. 

Question/Issue of primacy

• The respondents contended that the question of the primacy of either of the Constitutional authorities is inconsistent with the concept of consultation. However, they also agreed that the views of the Chief Justice of India must have greater leverage considering the special position occupied by him and the advantage of views he might have when compared to other functionaries.
• The respondents contended that the inclusion of the concept of the primacy of the Chief Justice of India would mean the addition of a proviso to the provisions under Article 217. This would ultimately have an implication of rewriting the provision.
• They argued that the provision must not be interpreted in a hierarchical manner since the power of the two Chief Justices to give their opinion to the President under Article 217 is functional and irrelevant to hierarchy. They contended that the significance must be given to functional efficacy and not to the question of primacy.
• The respondents contended that the executive as well as the legislature derive their power from the people and are accountable to them. Similarly, the judiciary must as well work in the same manner, either directly or indirectly. Thus, the judicial appointments are made by the executive as it is accountable to the people through the Parliament.

Justiciability of fixation of judges’ strength

• The respondents contended that the question over the issue of judge strength was not sustained as it had already been disposed of in the decision of Subhash Sharma and Ors. vs. Union of India (1990). 
• They contended that the increase in the strength of the judges has financial implications as well and hence it has to be left to concerned authorities to decide accordingly.
• The respondents contrasted the provision under Article 216 with Article 124 and pointed out that the Parliament prescribes the strength of the Supreme Court under the latter provision. Accordingly, they argued that the power to decide the strength of the judges has to be left to the Parliament and not to the executive or the judiciary. If any situation arises where it is felt that the strength of the Supreme Court has to be increased, it has to be done by the Union legislature by way of legislation.
• They further argued that the Court cannot issue a mandamus to the Parliament to legislate. They asserted that the Court is not empowered to prescribe the strength of the judges in a Court by way of judicial review. Thus, they contended that the matter is not subject to justiciability.
• Furthermore, they contended that the fixation of judge-strength has been intentionally left to the President. They asserted that the President is the head of the executive which is technically under the control of the Parliament or legislature which will ensure constant review or fixation of judge-strength.

Judgement in Supreme Court Advocates on Record Association vs. Union of India (1993)

The decision in the instant case was delivered with a ratio of 7:2 wherein the majority opinion overruled the ruling in S.P. Gupta vs. Union of India (1982) and answered the issues in question in the affirmative while the other two judges dissented on one of the issues.

The Court, on the question of primacy, concluded that the role of the Chief Justice of India in the matter of appointment of the Judges of the Supreme Court is unique, singular and primal, but participatory vis-a-vis the executive on a level of togetherness and mutuality, and neither he nor the executive can push through an appointment in derogation of the wishes of the other.

The minority judgement given by Justices Ahmadi and Punchhi held that the executive had primacy over the opinion of the Chief Justice of India while on the matter of the fixation of judge strength, Punchhi did not express a view, Justice Ahmadi concurred with Justice Venkataramaiah, in SP Gupta’s case allowing a limited mandamus to the issue.

The decision rendered by the majority as well as the dissenting judges is discussed as follows.

The majority ruling discussed below is as per the opinion rendered by Justice J.S. Verma and his four colleagues and not the other two which are separate concurring opinions. Nevertheless, it also discusses observations or rulings rendered by the two concurring judges on any additional aspects other than those already discussed in the majority opinion.

Similarly, the dissenting opinion discussed below is as per the ruling rendered by Justice A.M. Ahmadi since Justice M.M. Punchhi arrived at the same conclusion as Justice Ahmadi but with a different reasoning. Justice Punchhi also observed that he is in agreement with his colleague except for the rationale explained by him.

Majority

In the instant case, a majority of 7 judges of a nine-judge bench of the Hon’ble Supreme Court answered the issues in question in the affirmative. A majority opinion of five judges along with two concurring opinions held that the Chief Justice of India has a primacy of opinion in matters relating to judicial appointments and transfers. However, it held that his primacy was as the head of an institutional body and not as an individual. The court also held that the matter of fixation on the judge’s strength in High Courts is justiciable to a certain extent.

The Court by a majority view ruled that the ruling rendered by the majority opinion in S.P. Gupta vs. Union of India (1982) with regard to the issues mentioned above is incorrect. Accordingly, it ruled that the relevant provisions of the Constitution along with the Constitutional scheme must be interpreted and implemented as per the manner prescribed in this judgement.

Meaning of consultation

The majority ruled that the meaning or understanding of the term ‘consultation’, when it concerns the Chief Justice of India as the head of the Indian judiciary for the purpose of judicial appointments, has to be different from that of its understanding and meaning when it concerns the executive for assistance in the said purpose or process. They observed that the usage of the word ‘consultation’ instead of ‘concurrence’ was to indicate that no excessive discretionary power was given to any of the Constitutional functionaries, including the Chief Justice, even though his opinion held greater value. It was a kind of check that was exercised through a consultative process by the executive, which is the appointing authority over the power of the Chief Justice.

Primacy of opinion

The Court ruled that the opinion of the Chief Justice of India holds primacy in matters relating to all judicial appointments under Articles 124(2) and 217(1) and no decision must be taken or no appointment must be made by the President in contravention of his opinion.

The majority held that Articles 74(1), 124(2), and 217(1) have to be interpreted harmoniously to ensure that the Constitutional aim set out in the latter two provisions is served. They ruled that the President must act in accordance with the advice of the Council of Ministers which, in turn, must conform with the requirements of Articles 124(2) and 217(1) i.e., the consultation with the Chief Justice of India.

They ruled that primacy must be given to the ultimate opinion of the Chief Justice of India. However, it might be ignored in the presence of strong reasons for the non-suitability of the candidate with the executive and such reasons must be disclosed to the Chief Justice. They further clarified that the primacy of the opinion of the Chief Justice of India is of him as an institutional head and not an individual. It is a collective opinion, formed after consideration of the views of his senior colleagues. They observed that the opinion of the Chief Justice in the consultation process must reflect the opinion of the judiciary.

They ruled that the opinion of the Chief Justice of India must be formed after consideration of the views of two senior-most judges of the Supreme Court. They held that consideration or ascertainment of the views of some other judges has been stipulated as essential under Article 124(2). Similarly, with regard to the appointments in High Courts, they ruled that the Chief Justice of the High Court must form his opinion after consideration or ascertainment of the views of the two senior-most Judges of the High Court.

Besides, the Court ruled that the initiation of the process of transfer of a judge must only be done by the Chief Justice of India. It held that a transfer made in accordance with the recommendation of the Chief Justice of India is not justiciable. 

It further ruled that the rule of seniority must be followed in the appointment process, except in the existence of compelling reasons to the contrary.

Justiciability of fixation of judge-strength

The Court noted that Article 216 imposes an obligation on the President to conduct a frequent assessment of the judge strength of the High Courts by taking the pending and the cases expected to be filed in the future into consideration. It held that the failure to perform the duty prescribed under Article 216 must be justiciable to ensure the performance of such an obligation. It ruled that the view taken by the majority in the decision of S.P. Gupta vs. Union of India (1982) concerning the comprehension of the Constitutional obligation prescribed under Article 216 in this regard was incorrect.

However, it clarified that the extent of justiciability of the matter does not extend beyond a mere direction to perform the duty mentioned under the provision in conformity with the recommendation of the Chief Justice of India. It ruled that the justiciability of the matter does not imply enabling the Court to assess and fix the judge strength of the High Courts by itself.

Moreover, Justice Kuldip Singh, who penned a concurring opinion laid down an instance when the duty of fixation of judge-strength has to be mandatorily by the executive. He ruled if the Chief Justice of any High Court recommends the fixation of judge-strength of such High Court and if the Chief Justice of India concurs with such recommendation, it is binding on the executive to perform its obligation under Article 216 to fix the judge-strength as recommended.

Dissent

The majority decision was dissented by two judges namely Justice A.M. Ahmadi and Justice M.M. Punchhi. Both the judges dissented on the issue of primacy of the opinion of the Chief Justice of India. But, both of them agreed with the majority on the issue of fixation of judge strength that it must be justiciable. They however clarified that the justiciability must only be to a limited extent and in the rarest of the rare cases.

Meaning of consultation 

Justice A.M. Ahmadi in his dissenting opinion held that the plain language of the term ‘consult’ refers to seeking advice or views and it does not imply concurrence or consent. He ruled that the meaning of the term does not imply that the person seeking advice or views is bound to follow it.

Primacy of opinion

Justice A.M. Ahmadi in his dissenting opinion ruled that it is hard to consider the views of the Chief Justice of India as the collective or symbolised views of the entire judiciary and hence the President is bound to act in conformation with such views.

He ruled that holding the advice rendered by the Chief Justice of India in the process of consultation as binding on the executive is inappropriate. Mandating the executive to act in accordance with such advice would mean giving a right to veto to the Chief Justice of India.  He observed that such a position does not conform with the Constitutional scheme.

He held that it is problematic to rule that the President is bound by the views of the Chief Justice of India as it would result in changing or rewriting the Constitutional provisions and their intentions. As a result, he ruled that the argument and reasoning put forth by the petitioners were not acceptable at this juncture as per the Constitutional provisions. Therefore, he ruled that he did not think the decision rendered in S.P. Gupta vs. Union of India (1982) required reconsideration of the primacy of the opinion of the Chief Justice of India.

Justice Punchhi ruled that the Chief Justice of India has a participatory role with the executive in matters concerning appointments to the Supreme Court. He held that neither of them could go ahead with the appointments against the views of the other.

Justiciability of fixation of judge-strength

As mentioned above, Justice A.M. Ahmadi and Justice M.M. Punchhi ruled in agreement with the majority on the issue of justiciability of fixation of judge strength. Justice Ahmadi ruled that the fixation of judge strength is justiciable to a certain extent and Justice Punchhi observed that he was in full agreement with his colleague.

Justice Ahmadi ruled that the issue of fixation of judge strength by the President under Article 216 is justiciable to a limited extent and should only be done in the rarest of rare cases. He ruled that if the executive is obligated to periodically review the judge strength in High Courts and if it fails to perform such obligation, a mandamus can be issued by the Courts to compel the executive to perform such obligation within a reasonable time.

Ratio Decidendi

Although the decision was rendered with a ratio of 7:2, the reasoning given by the Hon’ble judges for delivering their respective opinions was different. The pertinent reasons set out by the bench are discussed in detail below.

Majority

The ratio discussed below is as per the rationale laid down by the majority opinion of five Judges comprising Justice J.S. Verma and his four colleagues. 

Justices. J.S. Verma and four others

Primacy of opinion

The majority view in the instant case (hereinafter referred to as “the Court”) observed that the question of the primacy of the opinion of the Chief Justice of India has to be decided in the context of the purpose or the Constitutional scheme behind it. It noted that the purpose herein mentioned is to select the best candidates for appointment in the Supreme Court and High Courts to ensure the independence of the judiciary. Hence It observed that any interpretation of the Constitutional provisions which is contrary to the aforementioned purpose must be repugnant.

The Court noted the assertion made by the Government of India wherein they stated that the judicial appointments have been made only after the clearance of names by the Chief Justice of India. It observed that this assertion by the government indicated the primacy of opinion given to the Chief Justice by the executive.

The Court noted that the primacy of opinion takes an important position only when there is a disagreement to reach a unanimous conclusion. Hence, primacy should be held by a person who is more likely to be right in his opinion while discharging his duty to achieve the aimed purpose satisfactorily. In simple words, someone who may be considered an expert in the aforementioned regard.

The Court noted that appointments for the superior judiciary are made of persons who are either the judges of the lower courts or the members of the bar. In both instances, the main space for such persons to exercise their duties is the courts. Thus, the appropriate person to assess their credibility and worth is the Chief Justice of the Supreme Court and the High Courts who would possibly know even the personal traits of the candidates as he is likely to get such information from various sources. It pointed out that the introduction of the consultation process with the Chief Justices of their respective courts was with this realisation that the Chief Justice would be best equipped to know the worth and credibility of the candidate who is likely to be appointed for the superior judiciary. It also noted the aim behind such an introduction was to prevent political influence on the judicial appointments.

The Court held that the actual accountability in matters concerning judicial appointments is of the Chief Justice of India and the Chief Justices of High Courts since they were responsible for the functioning of the Courts and would have to face consequences and criticism if any unsuitable appointment was made.

The Court noted the observation made by Justice Bhagwati in S.P. Gupta vs. Union of India (1982) while discussing the independence of the judiciary wherein he had noted the rule of law as the core principle of judicial independence which must be taken into consideration while interpreting relevant provisions. Accordingly, they observed that the rule of law includes non-arbitrariness which is achieved by minimal discretion and collective decision-making with the consideration of a plurality of views. They further observed that the consideration of legitimate expectations while making decisions is also an essential of the rule of non-arbitrariness and hence must also be followed by the Chief Justice of India while exercising his power in the judicial appointments process.

However, the Court also clarified that the President can refuse to make an appointment as per the recommendation of the Chief Justice of India in exceptional cases where there are compelling reasons to justify the act of the President. It noted that there might be, at times, certain functionaries other than the Chief Justice, who would be in a better position to know the information such as personal antecedents, etc., of the recommended candidate. It further observed that such material or information must be disclosed to the Chief Justice.

Justiciability of fixation of judge-strength

The majority view in the instant case noted that the imposition of an obligation under Article 216 was to ensure speedy trial and justice which is also a directive principle crucial in the governance of the nation. It observed that it is the duty of the State to ensure compliance with such a principle and to ensure the protection of fundamental rights under Part III of the Constitution.

The Court observed that if the existing strength of the Court is felt to be insufficient to provide speedy justice and speedy trial to the people, which is a facet of fundamental right under Article 21, a direction can be issued for the assessment of the insufficiency and to fix the strength accordingly. It observed that such assessment and fixation would help in securing a legal system that promotes justice, which has also been mentioned in the Preamble of the Constitution.

The Court observed that the provision under Article 216 must not be interpreted in isolation. Instead, it must be construed as a part of the ultimate Constitutional scheme. It noted such an interpretation of the provision would make the obligation or the duty prescribed in it justiciable to a certain extent. 

Dissent

The rationale for the dissenting opinion discussed below is as per the views rendered by Justice A.M. Ahmadi. Justice M.M. Punchi observed that he was in agreement with the opinion of his dissenting colleague.

Justice A.M. Ahmadi

Primacy of opinion

Hon’ble Justice Ahmadi held the argument of the petitioners wherein they argued “that the Central Government in actual practice has always given primacy to the concurrence of the Chief Justice of India and the appointments made contrary to his opinion are very few, hence, the decision in S.P. Gupta vs. Union of India (1982) must be reconsidered” as unsustainable. He observed that both the executive and the judiciary work together to arrive at a consensus in matters relating to appointments and not against each other. Hence, making appointments in conformity with the opinion of the Chief Justice after arriving at a consensus is possible and it must not be the justification for reconsideration of the decision.

He noted that the consultation with the three Constitutional functionaries mentioned under Article 217(1) is an essential requirement in the appointment process. However, he observed the ultimate power of appointment rests with the President who must act in accordance with the aid and advice of the Council of Ministers under Article 74.

He pointed out three main aspects of the primacy of the Chief Justice of India as follows.

• Primacy of the Chief Justice as the head of the Indian Judiciary.
• Primacy to his views amongst all the consultees under Articles 124(2) and 217(1).
• Primacy of his opinion or views which are binding on the President i.e., the executive.

Justice Ahmadi, with regard to the first aspect, noted the unique position of the Chief Justice of India, the authority and powers vested in that position, and the responsibilities performed by him. Accordingly, he observed that the Chief Justice of India holds primacy to that limited extent.

Justice Ahmadi, while examining the second aspect observed that the provision under Article 124(2) and particularly under Article 217(1) does not prescribe any kind of hierarchy between the consultees (Constitutional functionaries) mentioned therein. Hence, none of the opinions rendered by different functionaries can be ignored.  He observed that it is unfair to consider the opinions rendered by other consultees as unwanted if they are in contravention with the opinions of the Chief Justice of India. He observed that awarding greater weight to the advice is different from treating it as the ultimate one. While the former one is fair and possible, the latter one is unfair to the other consultees.

He noted that the President is obligated to act in accordance with the aid and advice of the Council of Ministers under Article 74. Thus, binding the views of the Chief Justice on him would imply that the Council of Ministers including the Prime Minister is bound by such views. He hence observed that such an interpretation would mean rewriting the Constitution and changing the roles, positions, and structures laid down by the Constitution. Therefore, he observed that it is not possible to accept the contended reasoning unless the Constitution is amended.

Ultimately, with regard to the third aspect, he observed that the plain meaning of the term ‘consult’ means to seek advice and opinion but it does not imply that the person or authority seeking consultation is bound to abide by such advice or opinion.

Although he noted that it may be appropriate to construe any provisions broadly or to mould them according to the changes in society, it is impermissible to rewrite or replace the provisions in the guise of broad interpretation. Accordingly, he observed that it is not possible to indicate that the term ‘consult’ means concurrence or consent.

He noted provisions under Articles 320(3) and 323 of the Constitution which provide for consultation of the public service commission. The provisions also provide the procedure to be followed by the government if it chooses to not accept the advice of the commission. Hence,  Justice Ahmadi observed that the Constitution itself lays down the possibility of non-acceptance of the advice rendered by the consultee. He also noted the decision of the Hon’ble Supreme Court in the State of U.P. vs. Manbodhan Lal Srivatsava (1957) wherein the Court observed that “the requisite of consultation does not extend to make the advice rendered by the commission binding on the government.” Accordingly, He observed that consideration of the advice rendered by the Chief Justice of India binding on the executive would lead to empowering the Chief Justice with a veto which does not look appropriate from the existing Constitutional perspective. 

Justiciability of fixation of judge-strength

Justice Ahmadi on the issue of fixation of judge strength noted the view of Justice Tulzapukar in S.P. Gupta vs. Union of India (1982) in this regard wherein he observed that “it would not be appropriate for the Courts to issue a writ or direction to the President to fix the judge-strength in High Courts under Article 216 as it is a purely executive function unless forced by glaring circumstances.“ He also noted the view of Justice Venkataramiah wherein he had ruled that the issue of fixation of judge-strength of the High Courts can be subjected to judicial review to a limited extent such as for issuing a mere direction for the performance of duty under Article 216. Accordingly, he observed that the power to issue a writ or direction to the President to review and fix the judges’ strength in the High Courts can be exercised by the Court to a limited extent and in exceptional circumstances.

He examined the ambit of judicial review to decide the issue of justiciability of the fixation of judge-strength. He noted that any administrative action resulting from the performance of duty may be judicially reviewed on 3 grounds namely illegality, irrationality, and processual impropriety. He further noted that in cases where the duty is not discretionary but is to be performed mandatorily as per the statute and if it has not been performed, Courts can issue a mandamus for the performance of such duty.

Furthermore, Justice Ahmadi examined the ambit of judicial review concerning the duties which are discretionary in nature. He observed that a direction can be issued to the executive authority to exercise its discretion and decide if the performance of such discretionary duty is necessary within an equitable time. However, he clarified that a mandamus of such a limited nature can be issued only with the backing of sound legal principles. Therefore, he ruled that a mandamus of a limited nature or a direction can also be issued for the fixation of judges’ strength.

Analysis of Supreme Court Advocates on Record Association vs. Union of India (1993)

The Court noted various debates that took place while drafting the Constitution and also the provisions relating to judicial appointments in the pre-independence era legislations. They noted that the primary intention of including the consultation process in the relevant provisions was to ensure the independence of the judiciary not only after the appointment of the judges but also during their appointments. It was to ensure that the judicial appointments were free from any kind of political influence.

The Court also referred various precedents, judicial appointment processes in other nations, and significant juristic works for examination of the key Constitutional issues involved in this case and ultimately delivered a balanced judgement ensuring the protection of the independence of the judiciary. Although the decision might not have been perfect, it attempted to ensure the process of judicial appointment was free from the executive influence as an implied aspect of separation of powers which has also been mentioned in Article 50 of the Constitution.

Simultaneously, it is important to highlight that the Court in the instant case failed to address some of the other pertinent concerns that occur with the collegium system such as the lack of transparency or accountability. 

Issue-wise analysis

The issue wise analysis of the judgement is discussed as follows.

Import of the term ‘consultation’

The first major issue was the import of the term “consultation” occurring in Art. 124. The majority held that it indicates an integrated, participatory, and consultative process. This entails the full discharge of constitutional obligations on the part of constitutional functionaries. Various approaches have been used by the judges to show that “consultation” means occurrence or primacy notably among which are”

The Chief Justice of India as a ‘PaterFamilias’ (head of the family) would be in the best position to judge.

In contrast to other constitutions, the Indian constitution does not vest absolute discretion in the hands of the executive. Hence, the Chief Justice of India cannot be regarded as an inferior position.

The practice of appointments has become an inseparable part of the constitution leading to the formation of a convention. This convention does not allow the making of an appointment without the concurrence of the Chief Justice of India.

The central government being a litigant in a large number of cases before the court cannot be a party to the appointment of judges.

All the judges have also given the maintenance of the independence of the judiciary as a reason.

The initiation of the proposal must be made by the Chief Justice of India. In the case of a High Court, the proposal must emanate from the Chief Justice of that concerned High Court. The Chief Justice of India is expected to initiate any proposal for transfers. Further, a check has been placed at the discretion of the Chief Justice of India, who is now bound to consult with two of his senior-most colleagues. Thus the Chief Justice of India will act as a representative of the collegium. If a proposal for appointment is made by the collegium and is turned down by the central government, there are two possibilities. These depend upon the concurrence of senior-most colleagues. The other two judges are of the view that it must be withdrawn, the recommendation will be withdrawn. However, if they are in concurrence with the Chief Justice of India, the recommendation will be made again and it has to be accepted.

The criteria for appointment

In relation to the appointment of the Chief Justice of India, the majority held that seniority must be the prevailing criteria, provided of course the person in question is fit. In relation to the appointment of judges to the Supreme Court, the seniority of the judges in the High Court as well as their combined seniority have to be given weightage. Further, the legitimate expectations of the judges slated for elevation must be kept in mind.

The transfer of high court judges

Consent of the transferee is irrelevant. However, the personal factors of the transferee must be kept in mind by the Chief Justice of India while affecting the transfer. This is in conformity with the decision rendered in the SP Gupta case. The transfers affected must not be deemed to be punitive.

Justiciability of such transfers is not possible, except on the ground that a transfer was not made on the recommendations of the Chief Justice of India.

Justiciability of judge strength

The fixation of judge strength is justiciable but, it must be shown that lack of strength leads to “slow justice”, (as it is mandated by article 21, that speedy justice in courts is a fundamental right in respect of criminal trials) The opinion of the Chief Justice of India and the Chief Justice of respective High Court must be taken into account.

Appointment of the less privileged class

Justice Ratnavel Pandian has devoted a substantial part of his judgement throwing light on the inadequate representation of certain classes. He has adduced statistics to show that women, OBCs, SCs, and STs have not been given adequate representation. He has, therefore, placed an onus upon the government to forward the list of these classes, upon which the Chief Justice of India shall decide.

Precedents referred

The bench noted and referred to various precedents while examining the issues involved in the case. The fundamental decision that was referred to was S.P. Gupta vs. Union of India (1982) since it was the judgement that was being reconsidered. Several pertinent observations relating to the Rule of Law, Independence of the Judiciary, transfer of judges, and many other aspects were noted, affirmed, and disagreed by the bench in the instant case. The second important decision that was noted was Subhash Sharma and Ors. vs. Union of India (1990) as it was also in the same regard. 

Various other relevant precedents were also noted and referred to by the bench while analysing the issues. A few of the precedents noted by the majority opinion are as follows.

Sub-committee on Judicial Accountability vs. Union of India (1991)

The Hon’ble Supreme Court, while examining the interpretation of Constitutional provisions concerning the independence of the judiciary noted certain observations made by a Constitution Bench in the case of the Sub-committee on Judicial Accountability vs. Union of India (1991).

The Hon’ble Apex Court, in this case, was dealing with writ petitions filed on issues relating to the removal of judges under relevant Constitutional provisions and the Judges Inquiry Act, 1968. The Court had noted that the case involved issues of Constitutional importance concerning the interpretation of Articles 121 and 124 and the Judges Inquiry Act, 1968.

The bench in the said case had observed that it was necessary for the courts to take a synopsis of the Constitutional provisions relating to the judiciary and its independence before examining the merits of the case. It had ruled that the Court while interpreting such provisions, must adopt an interpretation that would strengthen the fundamental features and the basic structure of the Constitution. It was observed that the Rule of Law is a fundamental feature of the Constitution embodied in the Constitutional Structure. Furthermore, the independence of the judiciary was observed as an important facet of the Rule of Law.

The Hon’ble Court noted the aforementioned observations while noting that the interpretation of the Constitutional provisions must be in accordance with the fundamental concepts of the Constitutional structure.

Indira Nehru Gandhi vs. Raj Narain (1975)

The Court while discussing the concept of the Rule of law and the scope of discretionary powers of the public authorities noted the observations made by Hon’ble Justice Mathew regarding the significance of the concept in Indira Nehru Gandhi vs. Raj Narain (1975).  The Hon’ble Supreme Court, in this case, was dealing with a challenge against the judgement of the Allahabad High Court in which the Court vacated the seat held by the appellant on the grounds of electoral malpractices. 

Justice Mathew, in this case, noted the decision of Kesavananda Bharati vs. State of Kerala (1973) wherein the majority view ruled that the rule of law is an essential part of the basic structure of the Constitution along with democracy. He then proceeded to observe that the rule of law suggests the universality of the spirit of the law which excludes arbitrary action of the government officials. He noted that the concept of the rule of law is to make something non-expressible into a reality. He further observed that the concept of the rule of law is based on individual liberty and aims to harmonise two contrasting aspects of law i.e., individual liberty and public order. also noted the opinion of Sir Ivor Jennings where he addressed the concept as an unruly horse. 

Justice Mathew further went on to note Dicey’s definition of the concept wherein he explains it as “the absolute supremacy or predominance of regular law, as opposed to the influence of arbitrary power, excluding the existence of arbitrariness, of prerogative, even of wide discretionary authority on the part of the government.” 

Accordingly, after noting the aforementioned observations, the court (majority opinion) in the instant case ruled that there must be scope for discretionary power within the functioning of the rule of law, even though such discretionary power is minimal in extent.

Ashok Kumar Yadav vs. State of Haryana (1985)

The Court in the instant case noted the observations made by Hon’ble Justice Bhagwati in a case concerning the selection of candidates for judicial appointments in Ashok Kumar Yadav vs. State of Haryana (1985).

The Hon’ble Supreme Court was dealing with a Special Leave Petition (appeal) filed against the decision of a division bench of the Punjab and Haryana High Court setting aside certain selections made by the State Public Service Commission to the Haryana Civil Service and other related services. The Constitution bench in this case delivered a unanimous ruling and set aside the decision of the High Court.

Justice Bhagwati, while discussing and examining the process of judicial appointments, noted the practice of inviting a retired judge of the High Court as an expert in the appointment process. He observed that, while making appointments for the state judicial services, it is extremely important to ensure competent and able persons with great integrity are selected for the post. He cautioned that the failure to such care may lead to having incompetent and dishonest judges who will impose dangers to the democratic polity of the State. Hence, he observed that it is essential to nominate a sitting judge of the High Court as an expert in the appointment process particularly in the interview rather than a retired one. He observed that such a nomination is due to the fact that such a nominated person as a sitting High Court judge knows the quality and integrity of the candidates appearing for the interview.

Furthermore, he ruled that the advice rendered by the nominated person must be accepted by the chairman and members of the Public Service Commission. However, he clarified that such advice may not be accepted in the presence of strong reasons for non-acceptance, which must be recorded in writing.

The Court (majority opinion) in the instant case concurred with the aforementioned observations and ruled that it applies to the appointments made to the superior judiciary as well.

Union of India vs. Sankal Chand Himatlal Sheth (1977)

The Hon’ble Supreme Court, in the instant case, while ruling upon the issue of prior consent for making transfers under Article 222 of the Constitution noted the ruling delivered in Union of India vs. Sankal Chand Himatlal Sheth (1977). 

The Court, in this case, was dealing with an appeal filed against a decision of the Gujarat High Court rejecting the writ petition of the appellant. The appellant, who was a judge, through the said writ petition, had challenged the notification issued by the President which prescribed the transfer of the appellant from the High Court of Gujarat to the High Court of Andhra Pradesh. He had challenged the transfer based on the grounds that the transfer was proposed without his prior consent which was contended to be a requisite as per Article 222. The Special three-judge bench had unanimously rejected the challenge of the appellant against the notification of transfer.

The Hon’ble Supreme Court in this case upheld the decision of the Gujarat High Court and subsequently the notification of transfer. It ruled that the protection of the independence of the judiciary by interpretation of the provision under Article 222 does not mean that a judge cannot be transferred without his prior consent. It held that the power to transfer judges from one High Court to another is conferred on the President by the Constitution in the public interest and such power can be exercised in the public interest only.

The Court in the instant case affirmed the aforementioned observations and the ruling and held that there is no requirement of prior consent of the judge before his transfer under Article 222. It held that the entire issue of the transfer of judges had already been decided in the case mentioned above and also in S.P. Gupta vs. Union of India (1982) and hence it was not necessary to repeat the same.

In addition to the cases discussed above, other significant rulings such as K.M. Nanavati vs. State of Bombay (1960), All India Judges’ Association vs. Union of India (1993), Bengal immunity vs. State of Bihar (1955), Shamsher Singh vs. State of Punjab (1974), Indra Sawhney vs. Union of India (1992), R.C. Poudyal vs. Union of India (1993) etc., were also noted and referred to by the other concurring and dissenting judges. 

Aftermath of the judgement

Several developments have been witnessed concerning the judicial appointments since this decision. One of the immediate consequences of this decision was the establishment of the collegium system followed by its strengthening in the third judges case. Nearly two decades after the third judges case,  legislation seeking to replace the collegium system was enacted which was struck down by the Hon’ble Supreme Court in the fourth judges case retaining the process of judicial appointments through the collegium system. Currently, judicial appointments are made through the collegium system process. 

Collegium System

Collegium system refers to the procedure or structure laid down by the Hon’ble Supreme Court for judicial appointments. It is a process or mechanism of judicial appointments by the collegium. This particular system has evolved through judicial precedents and was laid down in the instant case.

According to this system, a collegium is present at the national level in the Supreme Court and at the state level in various high courts.

Collegium refers to a three-member body comprising the Chief Justice of India and his two senior-most colleagues of the Supreme Court. The collegium of a High Court consists of the Chief Justice of that High Court along with his two senior-most colleagues.

The process of judicial appointments through the collegium system involves two steps which are as follows.

• Recommendation of names by the collegium for an appointment or transfer of a judge.
• Appointment or transfer of judge(s) as per the recommendation of the collegium.

Third Judges Case

The case of In Re: Special Reference No. 1 of 1998, popularly known as the third judges case is not any kind of petition or PIL but is a reference made to the Chief Justice of India by the President under Article 143 of the Constitution. 

The President of India on July 23rd, 1998, exercising his authority under Article 143 of the Constitution, made a special reference to the Hon’ble Supreme Court for the consideration of the questions of law relating to judicial appointments and to submit its views/opinion accordingly. The issues specified by the President were broadly decided in S.P. Gupta vs. Union of India (1982). The Hon’ble Apex Court examined the questions/issues of law referred by the President and delivered the ruling on 28th October 1998 and affirmed the decision rendered by itself in S.P. Gupta vs. Union of India (1982)

One of the significant questions that were referred for consideration by the President was whether the Chief Justice of India was supposed to consult only two senior-most judges under Article 124(2) or whether wider consultation was required.

The Hon’ble Supreme Court in this case strengthened the process of judicial appointments through the collegium system. The Court increased the composition of the collegium from a three-member body to a five-member body. It changed the composition of the Chief Justice along with his two senior-most colleagues to four senior-most colleagues. However, the composition of the High Court collegium remained the same.

National Judicial Appointments Commission (NJAC) and the Fourth Judges Case

The National Judicial Appointments Commission (hereinafter referred to as the “Commission” or “NJAC”) was a body that was established to replace the existing collegium system for making judicial appointments. This commission was established under the National Judicial Appointments Commission Act, 2014 after its enactment in 2014 along with the enactment of the 99th Constitutional Amendment Act to amend the Constitutional provisions relating to judicial appointments. 

The 99th Constitutional Amendment Act inserted Articles 124A, 124B, and 124C which provided for the establishment, composition, and functions of the commission. The composition of the commission included the following.

• The Chief Justice of India as the ex-officio chairperson of the commission
• Two senior-most judges of the Supreme Court.
• The Union Minister for Law and Justice.
• Two eminent persons, were nominated by a committee comprising the Prime Minister, the Chief Justice of India, and the Leader of the Opposition in the Lok Sabha.

The Constitutional validity of the National Judicial Appointments Commission Act, 2014, and the 99th Constitutional Amendment Act was challenged before the Hon’ble Supreme Court in Supreme Court Advocates on Record Association and Ors. vs. Union of India (2015) on the grounds that it violated the independence of the Judiciary and hence the Basic Structure of the Constitution. 

The Hon’ble Apex Court delivered its decision in this case on 16th October 2015 and declared both the impugned legislations as unconstitutional and void and retained the collegium system for judicial appointments. 

National Judicial Commission Bill 2022

In the recent attempts to replace the collegium system, the National Judicial Commission Bill, 2022, along with the Constitution Amendment Bill, 2022 was introduced in the Rajya Sabha in 2022.

The bills proposed to replace the collegium system with the National Judicial Commission for making judicial appointments by insertion of Articles 124A to 124E in the Constitution. 

The body proposed by this bill was similar to the National Judicial Appointments Commission Bill, 2014, except for one change in the composition. In the latest bill, the Union Minister for Law was replaced by the Attorney General of India. Although the bill was passed in the Rajya Sabha, no major development was witnessed in this regard later.

Current Position

The judicial appointments, currently, are made through the collegium system. Although the system has been subjected to various criticisms and also a few unreasonable delays in recent times, it has been retained. 

The composition of the collegium is currently based on the decision rendered in the third judge’s case. The Supreme Court collegium is a five-member body comprising the Chief Justice of India and his four senior-most colleagues whereas a High Court collegium is a three-member body comprising the Chief Justice of the High Court and his two senior-most colleagues.

Criticisms

The collegium system has been strongly criticised in various instances by members of the bar, civil society, government, and sometimes ex-judges too on various grounds such as transparency, accountability, and recently, the delay in the appointment of judges whose names have been recommended by the collegium. However, it has been pointed out by the members of the bar as well as the judiciary who are critical of this system that the collegium system is the only better option at this juncture to ensure the independence of the judiciary. 

One of the major grounds for criticism is the lack of transparency and accountability. The collegium system is often criticised as a process that takes place behind closed doors. The process and working of collegium are often not placed before public space which raises concerns about the transparency in the system. It is also criticised because of the lack of accountability of the collegium. The collegium is completely separated from the executive and is not accountable to any administrative body resulting in a lack of a system of checks and balances or accountability. As mentioned earlier, the working of the system takes place and is not placed before the public which makes it non-accountable directly to the public as well.

The collegium system is also criticised due to concerns relating to chances of nepotism and favouritism in making judicial appointments. Simultaneously, unequal representation also poses a concern among the public causing criticism of the system. 

Additionally, one of the major concerns that have been recently developed regarding the collegium system is the vicious cycle of recommendation and abeyance of appointment between the collegium and the executive. It has been witnessed in recent times that a few names that have been recommended by the collegium to the executive for appointment are either delayed for a long time or returned without appointment without providing any reasons for such action. This has led to a kind of tussle between the executive and the judiciary.

It is equally important to address the concerns regarding the system while retaining the collegium system to ensure the independence of the judiciary. One of the solutions could be to include the process with the scope of the right to information to ensure transparency is maintained. As the views of the judges, while nominating any individual for judicial appointment are already recorded in writing, it would be appropriate to place them in the public domain if and when required to decimate the concerns. This would also help in addressing the aspect of accountability since transparency and accountability go hand in hand.

Conclusion

The Hon’ble Supreme Court touched and ruled upon a very crucial aspect in the instant case and delivered a significant ruling that might have been the appropriate one at that juncture. However, it is important to note that changes are necessary according to the changing scenarios. Although the Hon’ble Court attempted to strengthen the judicial appointment process through the collegium system in the third judges case, there were still a few loopholes or concerns that needed to be addressed and which still exist even in the times.

The enactment of legislation to secure the Right to Information Act of citizens which gives the citizens a right to seek information relating to public affairs and eventually empowers them to seek accountability was a landmark step towards ensuring transparency in matters relating to public affairs. While the Courts have always advanced the cause of transparency in almost all public affairs, it is also necessary to ensure transparency in the judicial appointment process, even though it might be to a minimal extent to secure privacy. It is significant to strike a balance between transparency and individual privacy.

It is essential to secure the independence of the judiciary and protect it from all forms of executive influence which can be done through the collegium process. However, addressing the concerns regarding the process is also important as it will strengthen the public trust in judicial appointments and other judicial affairs which seems to be currently lacking to some extent. The balance of transparency and independence of the judiciary may be attempted to be established by applying or experimenting with one of the suggestions mentioned above.

Frequently Asked Questions (FAQs)

Which case is referred to as the “First Judges Case”?

S.P. Gupta vs. Union of India (1982) is popularly known as the First Judges Case.

What was held in the “First Judges Case”?

The Hon’ble Supreme Court in S.P. Gupta vs. Union of India (1982) held that the Chief Justice of India does not enjoy primacy of opinion in matters relating to judicial appointments. It also held that the matter of fixation of judge-strength cannot be decided by judicial review or by issuing a mandamus to the executive.

Which case is referred to as the “Second Judges Case”?

The instant case, Supreme Court Advocates on Record Association and Ors. vs. Union of India(1993) is popularly known as the Second Judges Case.

What was held in the “Second Judges Case”?

The Hon’ble Apex Court in Supreme Court Advocates on Record Association and Ors. vs. Union of India(1993) overruled the decision rendered by itself in the First Judges Case.

It ruled that the Chief Justice of India has a primacy of opinion in matters concerning judicial appointments. It also ruled that the matter of fixation of the High Courts’ judge-strength is justiciable to a certain extent.

Which case is referred to as the “Third Judges Case”?

In Re: Special Reference No. 1 of 1998 is popularly known as the Third Judges Case.

This case is a special reference made by the President to the Supreme Court under Article 143 of the Constitution for reconsidering the ruling delivered in the Second Judges Case. 

What was held in the “Third Judges Case”?

The Hon’ble Supreme Court affirmed the ruling of Supreme Court Advocates on Record Association and Ors. vs. Union of India(1993) and strengthened the appointment process by the collegium System.

It expanded the composition of the collegium from a 3-member body to a 5-member body.

Which case is referred to as the “Fourth Judges Case”?

Supreme Court Advocates on Record Association and Ors. vs. Union of India (2015) is popularly known as the Fourth Judges case.

What was held in the “Fourth Judges Case”?

The Hon’ble Supreme Court declared the 99th Constitutional Amendment Act, 2014 and the National Judicial Appointments Commission Act, 2014 as unconstitutional and upheld the collegium system for judicial appointments.

The aforementioned legislations prescribed the establishment of a National Judicial Appointments Commission for judicial appointments replacing the Collegium System. 

Which case led to the establishment of the collegium system?

The Second Judges case i.e., the case of Supreme Court Advocates on Record Association and Ors. vs. Union of India(1993) led to the establishment of the collegium system. Besides, the Third Judges Case strengthened the process of the collegium system.

What is the current process of judicial appointments?

The judicial appointments are currently made through the collegium system process.

What is the Collegium System?

The collegium system is a process or mechanism of judicial appointments by the collegium. This system has evolved through judicial decisions. 

The system consists of two stages namely the recommendation of names for appointments and transfers by the collegium followed by the appointment by the government.

The Collegium refers to a group of incumbent judges who decide and recommend names for judicial appointments and transfers.

What is the composition of the collegium?

The Collegium of the Supreme Court is composed of five judges which includes the Chief Justice of India as the head of the collegium along with his four other senior-most colleagues.

The Collegium of the High Court consists of the Chief Justice of that High Court along with 2 other senior-most judges of that Court.

How is the Chief Justice of India selected or appointed?

The Chief Justice of India is appointed based on seniority which is decided by the date of appointment of judges in the Supreme Court.

References

• https://byjus.com/free-ias-prep/collegium-system/#:~:text=UPSC%20PDF%20(Free)-,Timeline%20for%20changes%20in%20the%20appointment%20procedures,judges%20as%20he%20deemed%20necessary. 
• https://www.drishtiias.com/daily-updates/daily-news-analysis/appointment-of-judges-in-supreme-court 
• https://lawctopus.com/clatalogue/clat-ug/appointment-of-judges-in-india-analysis-of-the-4-judges-case/ 
• https://www.drishtiias.com/daily-news-analysis/collegium-system-for-the-appointment-of-judges 
• https://www.thelawadvice.com/articles/the-judges-case-shaping-judicial-independence-in-india 
• https://www.drishtiias.com/daily-updates/daily-news-analysis/collegium-system-6 
• https://byjusexamprep.com/upsc-exam/collegium-system-njac#:~:text=Under%20the%20collegium%20system%2C%20the,of%20judiciary%20in%20the%20country.
• https://www.drishtijudiciary.com/to-the-point/ttp-constitution-of-india/national-judicial-appointment-commission-njac  
• https://blog.ipleaders.in/national-judicial-appointment-commission-njac/ 
• https://www.drishtiias.com/daily-updates/daily-news-analysis/national-judicial-commission-bill-2022 
• https://lawctopus.com/clatalogue/clat-pg/collegium-system-in-india/ 
• https://cjp.org.in/collegium-system-of-judicial-appointment-a-critique/ 
• https://ijlmh.com/paper/collegium-system-in-india-criticism-comparison-and-future/# 
• https://blog.ipleaders.in/an-overview-of-njac-vis-a-vis-collegium-system-w-r-t-the-indian-judiciary/ 
• https://www.business-standard.com/article/current-affairs/2022-saw-fresh-attack-on-collegium-system-record-appointments-in-hcs-122122700539_1.html 
• https://www.outlookindia.com/national/understanding-the-friction-between-executive-and-judiciary-and-why-collegium-needs-more-transparency-news-269347 
• https://www.firstpost.com/opinion/judiciary-executive-tussle-friction-arising-out-of-democratic-functioning-can-be-ironed-out-but-not-turf-wars-11917882.html 
• https://thewire.in/law/watch-law-ministers-ideas-about-choosing-judges-unacceptable-but-sc-must-enforce-collegium-decisions 
• https://www.google.com/search?q=attacks+on+collegium+system&rlz=1C1GCEA_enIN935IN935&oq=attacks+on+collegium+system&gs_lcrp=EgZjaHJvbWUyBggAEEUYOdIBCDU1MzVqMGo3qAIAsAIA&sourceid=chrome&ie=UTF-8#ip=1 
• https://legal.economictimes.indiatimes.com/news/litigation/court-sends-bishnois-associate-chhippi-in-judicial-custody-after-interrogation-by-special-cell/106458876 

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