The First Judges Case
Chapter Forty-Four
Syllabus topic 3, "Judicial Process in India"
Pages 181 to 183 of 356
In one line
In 1981 the Supreme Court opened its doors to anyone acting in good faith for those who could not come, and in the same judgment held that the executive, not the Chief Justice, has the last word on who becomes a judge.
In the wording a student can write in an exam: S.P. Gupta v. President of India, AIR 1982 SC 149, known as the First Judges case, decided two things. On standing, that where a legal wrong is caused to a person or a determinate class who cannot approach the court by reason of poverty, disability or a socially or economically disadvantaged position, any member of the public acting bona fide may move the court under Article 226 or Article 32. On appointments, that "consultation" in Articles 124(2) and 217(1) does not mean concurrence, and that the ultimate power of appointment rests with the Central Government.
The case
Facts. Writ petitions filed in different High Courts and transferred to the Supreme Court under Article 139A challenged three things: a circular of the Union Law Minister asking Chief Ministers to obtain from additional judges their consent to appointment outside their own States; the non-extension of the terms of certain additional judges; and the transfer of two High Court judges. The petitions were brought by advocates who were not themselves affected, so their standing was in question.
Held. On standing, the Court widened locus standi decisively: where a legal wrong or injury is caused to a person or to a determinate class who by reason of poverty, disability or a socially or economically disadvantaged position cannot approach the court for relief, any member of the public acting bona fide may move the court under Article 226 or Article 32. On appointments, the majority held that consultation with the Chief Justice of India under Articles 124 and 217 does not mean concurrence, that the opinions of the constitutional functionaries are entitled to great weight but are not binding, and that the ultimate power of appointment rests with the Central Government.
Why it matters. It is the high water mark of executive primacy in judicial appointments, and it was the law for twelve years. It is also the birth of modern public interest litigation.
The appointments holding, unpacked
"Consultation is not concurrence." The reasoning is textual and orthodox. Where a constitution intends concurrence it says so; the framers used "consultation", and the ordinary meaning of that word is that the view must be sought and considered.
"The opinions are entitled to great weight." Consultation must be full and effective, in the sense established in Union of India v. Sankalchand Himatlal Sheth, AIR 1977 SC 2328: the material must be furnished and an opinion actually formed. What the Court denied was that the opinion binds.
The First Judges Case
"The ultimate power rests with the Central Government." Because Article 74(1) makes the President act on advice, and because nothing in Articles 124 and 217 displaces that.
The consequence. For twelve years the Government could and did appoint judges over the objection of the Chief Justice of India, and could decline to extend the terms of additional judges.
Why the two holdings sit in one case
The connection is not accidental, and noticing it is worth marks.
The petitions concerned the independence of the judiciary, but the petitioners were advocates with no personal stake. On the traditional rule they had no standing, and the appointments question would never have been decided. The Court had to widen standing in order to reach the merits.
So the case that gave the executive the last word on appointments is also the case that made it possible for anyone to raise a public wrong. The first holding was reversed in twelve years; the second reshaped Indian public law permanently.
What the case did NOT decide
It did not hold that the Chief Justice's view is irrelevant. Consultation had to be full and effective.
It did not approve the Law Minister's circular in all respects. The judgments differ, and the majority's disposition of the circular is narrower than the appointments holding for which the case is remembered.
It did not settle the transfer power. Sankalchand had already held that transfer must be in the public interest and never punitive.
Why it was overruled
The reasons are the Second Judges case's, but stating them here shows what was wrong with this one.
Independence is a constitutional value that the text serves. The Second Judges case reasoned that if the executive has the last word on who becomes a judge, the judiciary that reviews the executive is chosen by the body it reviews, which defeats the purpose the appointment provisions exist to serve.
Experience. Between 1981 and 1993 the practice of executive primacy, combined with the memory of supersessions in the 1970s, made the argument from experience rather than from text.
The word did not have to bear its ordinary meaning. Constitutional words take their meaning from the scheme, and the Second Judges case read "consultation" in the light of independence rather than in the light of the dictionary.
A worked example
In 1985, the Chief Justice of India recommends A for appointment to a High Court. The Government prefers B and appoints B.
Under the First Judges case. Lawful, provided the Chief Justice was fully consulted with the relevant material and formed an opinion. The opinion was not binding.
The First Judges Case
Under the law after 1993. Not lawful. The collegium's recommendation has primacy, and the Government may seek reconsideration once but must accept a reiterated recommendation.
What changed. No provision was amended. The change was in the meaning of one word, which is the point this group of chapters exists to make.
Quick revision
- S.P. Gupta v. President of India, AIR 1982 SC 149, the First Judges case, 30 December 1981.
- Standing: any member of the public acting bona fide may move the court where the person or class wronged cannot approach it by reason of poverty, disability or disadvantage.
- Appointments: consultation is not concurrence; the opinions are entitled to great weight; the ultimate power rests with the Central Government.
- Executive primacy was the law for twelve years, until the Second Judges case in 1993.
- The two holdings are connected: standing had to be widened before the appointments question could be reached at all.
- It did not make the Chief Justice's view irrelevant; consultation still had to be full and effective, following Sankalchand.
- The standing holding survives and reshaped Indian public law; the appointments holding was overruled.
Test yourself
1. State the two holdings of the First Judges case. On standing, that where a legal wrong is caused to a person or a determinate class who cannot approach the court by reason of poverty, disability or a socially or economically disadvantaged position, any member of the public acting bona fide may move the court under Article 226 or Article 32. On appointments, that consultation under Articles 124 and 217 does not mean concurrence, that the opinions of the constitutional functionaries carry great weight but do not bind, and that the ultimate power of appointment rests with the Central Government.
2. Why do the two holdings appear in the same judgment? Because the petitioners were advocates with no personal stake in the appointments and transfers they challenged. On the traditional rule of standing they could not have been heard at all, so the Court had to widen locus standi before it could reach the merits of the appointments question.
3. What was the reasoning for executive primacy, and why did it not survive? The reasoning was textual: a constitution that intends concurrence says so, and the framers wrote "consultation", whose ordinary meaning is that a view must be sought and considered rather than obeyed. It did not survive because the Second Judges case read the word in the light of the constitutional value the appointment provisions exist to serve, holding that a judiciary chosen by the executive it reviews cannot be independent.
4. What survives of the case today? The standing holding, which is the foundation of modern public interest litigation and is applied constantly. The appointments holding was overruled in 1993 by Supreme Court Advocates-on-Record Association v. Union of India, (1993) 4 SCC 441.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.