The Second Judges Case

In one line

In 1993 the Supreme Court reversed itself and took the appointment of judges out of the hands of the government, on the ground that a judiciary chosen by the executive cannot be independent of it.

In the wording a student can write in an exam: Supreme Court Advocates-on-Record Association v. Union of India, (1993) 4 SCC 441, the Second Judges case, overruled the First Judges case on appointments and held that in the matter of appointment of judges of the Supreme Court and the High Courts the opinion of the Chief Justice of India has primacy, and that his opinion is not his individual opinion but one formed collectively, after taking into account the views of his senior colleagues who are required to be consulted. MU prints the citation as "1994", which is the year of the AIR report.

The case

Facts. The correctness of the majority view in S.P. Gupta, that consultation does not mean concurrence and that the executive has primacy in judicial appointments, was referred to a nine judge Bench, together with questions on the transfer of High Court judges and on the fixation of judge strength.

Held. S.P. Gupta was overruled on this point. In the matter of appointment of judges of the Supreme Court and the High Courts the opinion of the Chief Justice of India has primacy. That primacy is, in effect, the primacy of the opinion of the Chief Justice of India formed collectively, that is to say, after taking into account the views of his senior colleagues who are required to be consulted by him for the formation of his opinion. In view of Article 74(1), the expression "President" in Articles 124(2) and 217(1) means the President acting in accordance with the advice of the Council of Ministers with the Prime Minister at the head, and the advice given must accord with the mandate of the Constitution.

Why it matters. It created the collegium, which is the arrangement under which every Indian judge has since been appointed, and it did so without any amendment to the Constitution.

The reasoning, which is what MU's question wants

MU asks whether the appointment procedure ensures independence, "in the light of" this case. So the reasoning matters more than the result.

1. Independence is part of the basic structure. If so, the appointment procedure must be read so as to secure it rather than to defeat it.

2. A judiciary appointed by the executive it reviews cannot be independent of it. Not because any particular appointment is corrupt, but because the power to appoint is a standing influence.

3. "Consultation" takes its meaning from the scheme, not from the dictionary. In the context of appointments to a judiciary whose independence the Constitution secures elsewhere at length, the word must be read to require that the judicial view prevail.