The Appointment of Judges

Article 124(3). Qualifications: a citizen of India who has been "for at least five years a Judge of a High Court", or "for at least ten years an advocate of a High Court", or "is, in the opinion of the President, a distinguished jurist".

Article 217(1). Every Judge of a High Court is appointed by the President by warrant "after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court", and holds office until sixty-two. Clause (2) requires ten years in judicial office in India or ten years as an advocate of a High Court.

Articles 222, 224 and 224A deal with transfer, with additional and acting judges, and with asking a retired judge to sit. They are taken in [Transfer and Removal of Judges] and in [The High Courts].

Broken down

Three things are separated. The power to appoint is the President's, which means the Union Government. The duty to consult is a condition on that power. The question in every case has been what the condition requires.

Who must be consulted, and when. For the Supreme Court, such judges as the President thinks necessary, and always the Chief Justice of India unless it is the Chief Justice being appointed. For a High Court, three named persons: the Chief Justice of India, the Governor of the State, and the Chief Justice of that High Court, except where the appointee is to be the Chief Justice of the High Court.

"Consultation" is a legal term of art. It does not mean asking. On the law as it stands after the Second Judges case, it means a process the Chief Justice initiates, whose outcome the Government must ordinarily accept.

The first answer: consultation

Facts. S.P. Gupta v. President of India, AIR 1982 SC 149, 1981 Supp (1) SCC 87, (1982) 2 SCR 365, decided 30 December 1981 by a Bench of seven. Four petitions were heard together. Advocates of the Bombay High Court challenged a circular letter of 18 March 1981 by which the Law Minister asked the Chief Ministers to obtain from every Additional Judge "their consent to be appointed as permanent Judges in any other High Court in the country", and the same consent from persons proposed for first appointment. A second petition challenged the appointment of three Delhi Additional Judges for three months only, and the decision not to continue two of them.

Held. The lawyers had standing: they have "a special interest in preserving the integrity and independence of the judicial system" and "cannot be told off at the gates". On the merits, the Government won every point. The consulted functionaries "are merely constitutional functionaries having a consultative role and the power of appointment resides solely and exclusively in the Central Government", subject only to consultation that is "full and effective". Consultation is not concurrence: "consultation is different from consentaneity. They may discuss but may disagree; they may confer but may not concur." And there is no primacy: "the opinion of none of the constitutional functionaries is entitled to primacy", because article 217(1) "places all the three constitutional functionaries on the same pedestal". The circular was not unconstitutional, and the fixation of judge strength under article 216 is "a purely executive function".

Why it matters. It is the high point of executive primacy and it governed for twelve years. Two things in it survived its own reversal: the standing of lawyers to litigate about the judiciary, which is a foundation of public interest litigation, and the requirement that consultation be full and effective, which the later cases build on rather than discard.

The second answer: primacy

Facts. Supreme Court Advocates-on-Record Association v. Union of India, AIR 1994 SC 268, (1993) 4 SCC 441, decided 6 October 1993 by a Bench of nine. Writ Petition (Civil) 1303 of 1987 was placed before nine judges by an order of 26 October 1990, because a referring Bench thought the majority view in S.P. Gupta on the Chief Justice's primacy and on the justiciability of judge strength needed reconsideration.

Held. In a summary of fourteen conclusions. Appointment is "an integrated 'participatory consultative process' for selecting the best and most suitable persons available". The proposal must be initiated by the Chief Justice of India for the Supreme Court and by the Chief Justice of the High Court for a High Court. Where the functionaries disagree, the opinion of the judiciary "symbolised by the view of the Chief Justice of India", and formed in the manner the judgment indicates, has primacy, and "No appointment of any Judge to the Supreme Court or any High Court can be made, unless it is in conformity with the opinion of the Chief Justice of India." The Government may decline only "in exceptional cases alone, for stated strong cogent reasons, disclosed to the Chief Justice of India"; if the Chief Justice and the consulted judges reject those reasons and reiterate, "the appointment should be made as a healthy convention". Appointment as Chief Justice of India "should be of the seniormost Judge of the Supreme Court considered fit". Only limited judicial review is available; judge strength is justiciable. The majority in S.P. Gupta "does not commend itself to us as being the correct view".

Why it matters. It is the source of the collegium, though it never uses the word. It said the Chief Justice's opinion must be formed "taking into account the views of the two seniormost judges of the Supreme Court", so that it "is not merely his individual opinion, but an opinion formed collectively by a body of men at the apex level in the judiciary". For a High Court appointment, the Chief Justice of that Court must form his own opinion after consulting "at least the two seniormost Judges of the High Court".

The third answer, and a case this book has not read

The Third Judges case, In re Special Reference No. 1 of 1998, arose on a reference by the President under article 143 after a disagreement about how the opinion of the Chief Justice is formed. Its report is not in this book's authorities, so no citation is printed for it and no holding is stated from it here.

What can be stated, because it comes from a report that has been read, is how a later Constitution Bench described it. In the Election Commission case, Anoop Baranwal, decided on 2 March 2023, whose own report carries no citation line either, the Court records that in the Third Judges case it "went on to answer the question that the sole individual opinion of the Chief Justice would not constitute 'consultation'", and that "It was also laid down that the Chief Justice of India must consult four senior-most puisne Judges before making appointment to the Supreme Court and High Courts."

That is the collegium as it is now described: the Chief Justice of India plus a number of the senior-most judges, whose collective view the Government must ordinarily accept. A student should say where each element comes from, and should say plainly that the word "collegium" appears nowhere in the Constitution.

A worked example

The Chief Justice of the Bombay High Court, after consulting his two senior-most colleagues, recommends Advocate Nusrat Ali for appointment as a judge of that Court. The Chief Justice of India, having taken the views of his colleagues, agrees. The Union Government returns the file, saying it has material about the candidate's professional record.

Step one, who has the power? The President, under article 217(1). The Government is right that it is not a rubber stamp, and the Court has never said it is.

Step two, was the process initiated correctly? Yes. On the Second Judges case the proposal for a High Court appointment must begin with the Chief Justice of that High Court, and his opinion must be formed after consulting at least his two senior-most judges.

Step three, may the Government refuse? Only "in exceptional cases alone, for stated strong cogent reasons, disclosed to the Chief Justice of India". So the material must be disclosed, not merely asserted, and disclosed to the Chief Justice.

Step four, what if the collegium reiterates? On the Second Judges case, the appointment "should be made as a healthy convention". The Government's remedy was the disclosure of its reasons, and it has been used.

Step five, can Nusrat Ali sue? Barely. Conclusion (10) says the norms "do not confer any justiciable right in any one", and conclusion (11) allows only limited review. Qualifications under article 217(2) are objective and could be tested; a judgment about suitability could not.

What it does NOT mean

It does not mean the Constitution was amended to create the collegium. The words of articles 124(2) and 217(1) are the words of 1950. What changed is their interpretation, which is why the criticism that the collegium has no textual basis is a serious one and why Parliament tried to legislate it away.

It does not mean the executive has no role. It appoints, it may seek reconsideration on disclosed reasons, and it controls the timing of the warrant. Nothing in these cases fixes a period within which the warrant must issue, and that silence is where the friction now lies.

It does not mean S.P. Gupta is worthless. It remains a leading authority on the standing of lawyers to litigate in the public interest, and its insistence on full and effective consultation was adopted, not rejected.

Quick revision

• Article 124(2): the President appoints a Supreme Court judge after consultation, and the Chief Justice of India "shall always be consulted" except for his own appointment. Article 217(1): three functionaries for a High Court.
• Qualifications: article 124(3), five years a High Court judge or ten years an advocate or a distinguished jurist; article 217(2), ten years in judicial office or as an advocate.
• The printed text of articles 124, 217, 222, 224 and 224A carries the Ninety-ninth Amendment's language, which is void. The earlier words are in force.
• First Judges, S.P. Gupta (1981), seven judges: consultation is not concurrence; no primacy for the Chief Justice; power lies with the Central Government. Lawyers have standing.
• Second Judges (1993), nine judges: an integrated participatory consultative process; the Chief Justice initiates; his opinion, formed with the two senior-most judges, has primacy; no appointment against it.
• Refusal only for "strong cogent reasons" disclosed to the Chief Justice; on reiteration the appointment should be made.
• Third Judges (1998): the report is not held in this book, so no holding is stated from it. A later Bench records that it required consultation with a plurality of judges.

Test yourself

1. Set out the words of article 124(2) and article 217(1) that are in force, and explain why the printed text differs.

2. State the three holdings in S.P. Gupta on consultation, primacy and judge strength.

3. What does "an integrated participatory consultative process" mean in practice, step by step?

4. In what circumstances may the Government refuse an appointment the collegium recommends?

5. The word "collegium" is not in the Constitution. Where, then, does it come from?

6. Which parts of S.P. Gupta survived the Second Judges case?