This article is written by Prashant Gupta. The article discusses the Supreme Court Advocates on Record Association Vs. Union of India case.
Introduction
The case is based on the independence of the judiciary as the part of 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.
After its judgement, the collegium system was adopted in the appointment of judges of Supreme Court and High Courts. Nine Judges examined two questions:
- The position of the Chief Justice of India.
- The justiciability of fixation of judge strength.
Facts
The nine-Judge Bench not only overruled S.P. Gupta’s case, but also devised a specific procedure for appointment of Judges of the Supreme Court in the interest of “protecting the integrity and guarding the independence of the judiciary.” For the same reason, the primacy of the Chief Justice of India was held to be essential.
The bench held that the recommendation in that behalf should be made by the Chief Justice of India in consultation with his two senior-most colleagues and that such recommendation should normally be given effect to by the executive.
Thus, in 1993, the Chief Justice of India got primacy in appointing judges, and till this time, it was the government’s job to fill vacancies in HCs and the SC.
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 judiciary. The omnipresent bogey haunting every pronouncement is the independence 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 [1], 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 [2].
The Supreme Court, while disposing of the matter, vested the ultimate control with the Central Government [3]. At this juncture, a bill was introduced in the parliament seeking to amend the Constitution (67th Amendment) Bill 1990 seeking to amend articles 124(2), 217(1), 222(1) and 231 (2) (a). This bill brought to empower the president to set up a judicial commission known as National Judicial Commission. The avowed objective was to implement the 121st Law Commission Report. This report recommended that a judicial commission is 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 SP Gupta case were heard by a three judge bench, namely Chief Justice Ranganath Mishra and Justices MN Venkatachaliah and MM Punchhi, which recommended reconsideration [4].
Issues
There were broadly two issues in this case:
Whether the opinion of Chief Justice of India should be given primacy with regard to the appointment and selection of Judges of High Courts and the Supreme Court, as well as in the transfer of Judges from one High Court to other?
- 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’ would be in the best position to judge.[8]
- 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.[9]
- 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.[10]
- 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.[11] Thus the Chief Justice of India will effectively mean this judicial troika. If a proposal for appointment is made by this judicial troika and is turned down by the central government, there are two possibilities. These depend upon the concurrence of the 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.[12]
- 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.[13] In relation to the appointment of judges to the Supreme Court, the seniority semi-quotes inter se 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.[14]
- 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.[15]
- 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.[16]
Whether these matters, as well as that of fixation of the number of Judges of each High Court, is justiciable?
- Justiciability of Judge Strength
The fixation of judge strength is justiciable but, it must be shown that lack of strength is leading 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.[17]
Other Issues
- Appointment of the Less Privileged Class
Justice Ratnavel Pandian has devoted a substantial part of his judgement to throw light the inadequate representation of certain classes. He has adduced statistics to show that women, OBCs, SCs, 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.[18]
Ratio Decidendi
In 1993, a nine-Judge Constitution Bench of the Supreme Court in Supreme Court Advocates-on-Record Association Vs. Union of India (1993) by 7-2 majority overruled the decision in SP Gupta’s Case (S.P. Gupta vs. Union of India), a late 1980’s case where a Supreme Court Constitution Bench held that ‘consultation’ does not mean ‘concurrence’ and ruled further that the concept of primacy of the Chief Justice of India is not really to be found in the Constitution.
Judgement
Thus on the question of primacy the court concludes that the role of 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.
In this judgement, the majority consisting of Justices JS Verma, Yogeshwar Dayal, GN Ray, Dr. AS Anand and SP Bharucha with concurring separate judgements delivered by S. Pandian and Kuldip Singh, JJ, held that view in SP Gupta’s case insofar as the issue of “primacy” is concerned is overruled.
The minority consisting of 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, Ahmadi, J concurred with Venkataramaiah, J in SP Gupta’s case allowing a limited mandamus to the issue.
Advice
The majority in this case, has ruled that the advice, viz., given to the president must be constitutional. Any advice that is given to the president, which is not in accordance with the constitutional provisions is not advice. To this extent, this marks a landmark in the interpreting of Art. 74; which has been held not to be applicable to Art. 124.
Conclusion
The judgement does not augur well for the future. There are many possible flash points. This must be viewed as a part of a macro-trend, namely the splurge in ‘Judicial Legislation’. The judiciary has not placed checks upon it and has suffered in consequence, the decision in Unnikrishnan case [19] and its aftermath is a prime example.
The judgement is flawed ab initio. A large part of the majority judgement is in danger of being rendered otiose. As MM Punchhi, J. has pointed out [20], a large part of the majority decision is obiter, as it was not based on the reference. The court has answered questions it was not asked. The reference only contained the question of ‘primacy’ and fixation of judge strength. Hence, the rest of the judgement is obiter.
Further, this judgement virtually re-writes the constitution [21]. The word ‘consultation’ can never mean ‘concurrence’. This may be an attempt to implement the 121st Law Commission recommendation which never got off the ground. Hence, it is not the duty of the legislature to do the work of the legislature.
Furthermore, the majority in the instant case have attempted to create a collegium in the form of the judicial troika. This constitutionally is not tenable. The “Chief Justice of India” cannot mean the Chief Justice and his two colleagues. If this is accepted in all cases, where the Chief Justice of India is consulted, he must consult the other two. This may cause great conflict in the future. The constitution of India has given a different position to the CJI. He has the ‘primus inter pares’ position in the judiciary. He is the administrative head.
References
[1] 1978 (1) SCR 423
[2] SP Gupta & others vs. UOI, AIR 1982 SC 149
[3] As per Bhagwati, J. in SP Gupta case
[4] Subhash Sharma vs UOI JT 1990 (4) SC 245
[5] Per S. Ratnavel Pandian,J., para 198 at 528
[6] Per JS Verma, J., para 474 at 648
[7] Per Kuldip Singh,J., para 394 at 623. Statistics have also been cited by all judges which show that between 1950-59, 210 out of 211 appointments were made only with the CJI’s concurrence.
[8] Per, Kuldip Singh,J., para 415 at 629; per Verma, J., para 493 at 654
[9] Per, JS Verma,J., para 505 at 660. This is perhaps similar to article 74.
[10] Per Verma, J.,. Para 505(15) at 661. However, Kuldip Singh, J., have dissented, he lays down merit as the sole criteria Para 418 at 613.
[11] Per, Verma, J., Para 505(3)(4) at 658
[12] Per Verma, J., Para 506(1) at 662
[13] Per Verma, J., Para 508 at 663
[17] Per Verma, J., Para 511 at 664. The dissenting view of Venkatramaiah,J., in SP Gupta’s case has been upheld. This view has also been accepted by Ahmadi., J., while Punchhi, J., has expressed no opinion
[14] Per S. Ratnavel Pandian, J., paras 243-244
[15] 1993(1) SC 474
[16] Para 539, at 680
[17] Per, Punchhi, J., para 538 at 680
