Equivalent Citation: AIR 1994 SC 868 Case No.:Writ Petition (civil)1303 of 1987 Petitioner: Supreme Court Advocates-on-Record Association and another Respondent: Union of India Date of Judgement: 06/10/1993 Bench: Ratnavel Pandian, A.M. Ahmadi, Kuldip Singh, J.S. Verma, M.M. Punchhi, Yogeshwar Dayal, G.N. Ray, Dr. A.S. Anand, S.P. Bharucha
Supreme Court of India had earlier in Union of India v. Sakalchand Seth defined the scope of the word “consultation” which the President had to have to appoint Judges in Supreme Court & High Courts. The court held that for an effective consultation all the constitutional functionaries must have for its consideration full and identical facts on the basis of which they would be able to take a decision. But the court added a rider that the president will have scope to differ from the CJI and take a contrary view. The spirit of the judgment was that “Consultation” does not mean “Concurrence”. The effect of this judgment was that judiciary gave the executive an upper hand in appointing judges thereby causing a violation of Independence of Judiciary which in itself is a basic structure of the Constitution. However, the court didn’t stop there and again in S.P. Gupta v. Union of India affirmed the decision of Sakalchand Seth sealing the fate of Independence of Judiciary in India.
The effect of these decisions was that the appointment of judges in higher judiciary was now on the mercy of the executive branch of the government. This paved the way for a greater political influence and favoritism in the appointment process. The cost of this regressive and bad decision was less independence for judiciary in deciding critical issues before them. By the virtue of Sakalchand & S.P.Gupta the judges in higher judiciary were on total mercy of the executives which often resulted in Conflict of Interest as it is the executive branch which has the power to appoint as well as a huge say in removal process. The entire system of justice delivery system was vitiated with these judgments.
These two judgments were bound to have an adverse impact on the impartiality and independence of Judiciary that is often the last hope of the citizens in this democratic nation of India. However, Bhagwati J. in his judgment suggested establishment of a judicial committee for recommending names of judges for appointment in higher judiciary. In his speculation it would be inappropriate to entrust power in a branch however high the office may be.
The following case i.e 2nd Judges was filed as a writ in the apex court for filling up the vacancies in the higher Judiciary. This writ petition brought into reconsideration the controversial judgment of S.P Gupta also known as Judges Transfer case.
Scope of the word “Consultation” in Article 124(2) of Constitution of India.
- Article 50 of the Constitution urges the institutions to separate the executive from the functioning of Judiciary as maximum as possible. Therefore, such upper hand in appointment procedure vested in the Executive is a clear violation of Article 50.
- The upper hand that has been granted by the impugned 1982 decision has made the executive “lord of the lords” and this great power has resulted in them becoming “overlord”. The interference of executive in judiciary’s domain must be minimized therefore; CJI’s recommendation shall not be ignored.
- This power of defiance with the President has made the CJI a passive body instead of being an active participant in the appointment procedure. This passive and uninvolved status of CJI has proved to be counter-productive to the independence of judiciary.
- The basic feature of Independence of Judiciary is strangulated in the clutches of this executive superiority and this will result in erosion of a free and fair administration of justice.
- Therefore, to save the basic feature of Independence of Judiciary the court through its decision must construe the word “Consultation” as equivalent to “Concurrence”.
The president being the executive head of the nation is bestowed by the Constitution authority to appoint judges in Supreme Court & High Court on the aid & advice of Cabinet Ministers as specifically provided in Articles 124 & 214. The Chief Justice of India is a mere consulter in the process and it is the executive which possesses greatest authority. The executive differing from the views of CJI is no impairment of Independence of Judiciary. The Constitution itself has granted greater autonomy to the President in the appointing process. The only role of CJI is that he has to make the President aware of the facts unknown to him regarding the considered candidate. The CJI’s role ends at this stage and then it is upon the President to finally appoint whoever he deems fit to hold the office.
Independence of Judiciary is not violated due to the following:
- The power to appoint the respective judges has been given by the Constitution to the President and during appointment the judge owes his faith & allegiance to the constitution and not to the appointing authority.
- The tenure of the office of these judges are fixed by the Constitution and no branch either Parliament or Executive has the competence to remove the judge from his office except in case of impeachment.
- The perks, allowances and salary of these judges are fixed by the Constitution and the Parliament cannot even by a unanimous bill reduce the quantum of such salary, perks & allowances.
- The conduct of a judge of SC or HC can never be discussed in a session of Parliament due to the privileges granted by the Constitution.
- Both of the higher judicial courts are Courts of Record i.e. they have the power to punish the ones who disrespect their decision.
- Both the higher judicial courts are given the power to decide the constitutionality of actions of the governments of the state as well as union government.
Therefore, by virtue of these Constitutional provisions the Parliament or Executive can neither impair Independence of Judiciary which is basic structure of Constitution nor can they make an amendment in these constitutional provisions since they constitute to be components of Independence of Judiciary.
The 9 judge bench delivered the much awaited judgment on October 6, 1993. The judgment was delivered with 7:2 majority overruled its earlier decision in S.P. Gupta and held that in issues regarding the appointment of judges in higher judiciary the opinion of CJI must be given primacy in order to minimize the executive influence in the Judicial functions. The majority judgment was delivered by Justice Verma on behalf of Ray, Anand, Dayal & Bharucjajj. while Kuldeep Singh and S.R. Pandian jj. delivered separate but concurring opinion and Ahmadi & Punchhijj. giving the minority opinion.
The court overruling its decision of S.P. Gupta held that the largest importance must be given to the recommendation of the Chief Justice of India formed after taking into consideration the opinion of 2 senior most judges of the Supreme Court. Therefore, this judgment saving the spirit of article 50 of the Constitution minimized the executive influence in judicial appointments. Further, the judgment thereby reduced the political influence and personal favoritism from the appointment procedure.
The court ruled that the appointment shall be made by giving primacy to the opinion of Chief Justice of India and the executive branch of the government shall only play the role of checks and balances on the judges’ exercise of power. Thus through this judgment the court corrected the mistakes committed in the past by reducing executive influence in the appointment process and the elimination of the political influence, biasness and favoritism. The court also expanded the scope of the word “Consultation” by construing it in equivalent terms with “Concurrence”.
The minority opinion by Ahmadi & Punchhi JJ. was that if as per majority’s view the primacy is to be given to the CJI then as a result of this upper hand the role of other constitutional functionaries discussed in the relevant provision of appointment procedure would become minimal and close to negligible. This erosion of power will result in an injury irreversible to the basic facet of Constitution i.e. Separation of Power. In their opinion if this would be the case then there is way too much levy on the part of the Judiciary and this inequality in the panel would often result in biasness, conflict and finally to chaos.
The majority along with delivering this landmark judgment also provided guidelines which must be followed in future in the procedure of appointment of judges in higher judiciary. The majority bench provided that in case there is a need of appointment of judge of apex court the initiation of proposal has to be from CJI and in matters of High Court through CJ of the respective High Court. The same way must be adopted for the transfer however, transfer of CJ of HC must be on the initiation of CJI. Reiterating the ratio of the case the court held that no appointment shall be made unless it is in conformity with the opinion of CJI. For the appointment of CJI the senior most judge of the apex court must be appointed as the next CJI.
The guidelines framed by the court are as follows:
- The CJI’s opinion must be given primacy but he must consult with his two senior-most colleagues.
- All the constitutional functionaries involved in the appointment process must participate harmoniously.
- Transfer of Judges cannot be challenged in the courts.
The decision of this case is a very important and sound decision in the sense that the majority overruled its earlier decision which gave the power of final word to the government. The majority now gave up a much more liberal and flexible interpretation of the word “Consultation” which earlier meant an opinion with no binding value. This position was changed by the judgment as now “Consultation” was meant as “Concurrence” and therefore granted it binding value. By the virtue of this decision the government cannot ignore the opinion and recommendation of the Chief Justice of India thereby reducing executive influence, political biasness, favoritism and influence. The decision upheld the validity of Article 50 which demanded the state to minimize the executive influence from the judicial works.
The majority bench shifting its stance on the matter considered that in matters of selection of the best suitable candidate for the office the CJI has the most extensive and thorough knowledge and that should be respected. The decision sought to strengthen the foundational features and basic structure of the constitution. The court has further to balance the powers of the panel had recommended that the process should be treated as one with mutual participation by taking into consideration the opinion of each and every consultee and giving the greatest weight to the CJI. In this way the powers of all the member participants would be balanced and there would be no misuse of authority.
The law laid down in this decision is one of great importance and therefore must be cherished. This decision minimized the political influence that the judiciary was suffering since independence. It also checked the government’s practice to appoint a judge bypassing the opinion of CJI.
However, in 2008 Justice Verma in a speech said that judicial appointments have taken shape of judicial disappointment. In an interview he was asked ti further elucidate his point. To this query he said that his opinion in this case was seriously misunderstood as well as misused. He said that in his judgment he meant that the process should be one where each member participates equally. What he meant was that the appointment process must be joint and participatory which nowadays has become redundant and one sided therefore, a rethink is required.
Therefore, considering Justice Verma’s majority opinion in the judgment vis-à-vis his opinion in 2008 there seems a flaw in the judgment which must be resolved to reduce the friction between the constitutional authorities.
The overall effect of the decision was great as in history quite a many times government in order to influence a decision played with the appointments as they were playing a game of Chess. The decision finally stored the power of appointment in the hands of CJI to minimize and control the executive influence in judicial appointments. Therefore, due to this decision to a great extent the political influence, biasness and favoritism was reduced in judicial matters which boosted the foundational and basic structure of constitution i.e. Independence of Judiciary.
The majority now gave up a much more liberal and flexible interpretation of the word “Consultation” which earlier meant an opinion with no binding value. This position was changed by the judgment as now “Consultation” was meant as “Concurrence” and therefore granted it binding value. Therefore, now the government cannot bypass the opinion of CJI as it used to do in the past to satisfy their political exigencies.
However, taking in regard Justice Verma’s recent comments on the interpretation of his decision gives chills as there has been a lot of corruption in the higher judicial branch. Taking in regard his opinion there is surely a need to rethink the matter and to come up with a stringent solution.
Aftermath of 2nd Judges Case
The same question was again brought into question in re Presidential Reference where again a nine – judges bench affirmed the decision laid down in 2nd judges case and further added that sole opinion of CJI is not maintainable and he must consult with a collegium of four senior-most judges of Supreme Court. The court increased the number of judges with who CJI must consult before arriving at a conclusion. Such decision can only be challenged on the ground that the guidelines framed by the 1993 & 1999 judgment have not been followed.
Then in 2014 the newly elected BJP Government brought 99th Constitutional (Amendment) Act, 2014 amending the Articles 124(2), 127 & 128 and also inserted Article 124 A,B&C. The combined effect of this amendment was the establishment of National Judicial Appointment Commission who would have the sole power in matters of appointment of judges in higher judiciary. The commission was made up of the following members
- CJI (Chairperson ex-officio)
- 2 senior-most judges of the supreme court (ex-officio members)
- The Union Minister of Law & Justice
- Two eminent personality (nominated by a committee consisting of PM, CJI &LoP )
This 99th constitutional amendment was further challenged before a five judge (Kehar, Lokur, Goel, Joseph & Chelameshwar) bench in Supreme Court Advocate-on-Record Association v. Union of Indiaon the grounds that the said amendment is violative of Independence of Judiciary which is a basic feature of Constitution. Therefore, the majority bench stuck down the 99th Constitutional Amendment as it was violative of Basic Structure. However, Justice Chelameshwar dissented with the majority and upheld the validity of the impugned amendment.
Edited by Chiranjeeb Prateek Mohanty
Union of India v. Sakalchand Seth,A.I.R. 1997 S.C. 2328.
S.P. Gupta v. Union of India, A.I.R. 1982 S.C. 149.
INDIA CONST. art. 124(2).
INDIA CONST. art. 124(4).
INDIA CONST. art. 125(2) & 221(2).
INDIA CONST. art. 121 & 211.
INDIA CONST. art. 129 & 215.
INDIA CONST. art. 12.
 Venkatesan, V. ‘Honesty Matters’ (2008) 25(20) Frontline, <http://www.frontline.in/static/html/fl2520/stories/20081010252003500.htm> accessed 14th July 2018.
In re: Presidential Reference, A.I.R. 1999 S.C. 1.
Supreme Court Advocate-on-Record Association v. Union of India, (2015) A.I.R. S.C.W. 5457.