The First Judges Case

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.