The Second Judges Case
Chapter Forty-Five
Syllabus topic 3, "Judicial Process in India"
Pages 184 to 186 of 356
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.
The Second Judges Case
4. But primacy is not personal. The Chief Justice does not decide alone. His opinion is one formed collectively with senior colleagues, which is the safeguard against the concentration of an enormous power in one office.
5. The executive retains a role. It may raise objections and seek reconsideration; what it may not do is prefer its own candidate over a reiterated judicial recommendation.
The criticism, which an answer must include
The word does not mean that. "Consultation" does not ordinarily mean "the consulted party decides". The First Judges case had the better of the textual argument, and the Second Judges case is a purposive reading against the plain sense.
Independence is not the only value. Democratic accountability in appointments is also a constitutional value, and the decision subordinated it entirely.
It made the judiciary self-perpetuating. No other constitutional office in India is filled by the incumbents of that office.
It is opaque. The collegium's deliberations are not recorded in any published form, and the criticism has been made by judges as well as by governments.
It did not solve the problem it addressed. Delay in appointments, vacancies and disputes with the executive over recommendations continued after 1993 and continue now.
What it did not decide
The composition of the collegium. The judgment spoke of the Chief Justice consulting senior colleagues without fixing how many. That was settled five years later in [The Third Judges Case].
Whether the arrangement could be changed by amendment. That question arose in 2014 and is [The National Judicial Appointments Commission].
A worked example
The collegium recommends X for appointment to the Supreme Court. The Government has material suggesting X is unsuitable.
What the Government may do. Return the recommendation with its material and reasons, asking for reconsideration.
What the collegium may do. Reconsider. If it accepts the objection, the recommendation is withdrawn.
If the collegium reiterates. The recommendation is to be accepted. The Government may not appoint someone else and may not simply decline.
What in practice happens. Files are sometimes not acted on for long periods, which is neither acceptance nor refusal, and is the practical weakness the formal rule does not address.
Quick revision
- Supreme Court Advocates-on-Record Association v. Union of India, (1993) 4 SCC 441, decided 6 October 1993 by nine judges. MU prints the AIR year, 1994.
- It overruled S.P. Gupta on appointments.
- Holding: primacy of the opinion of the Chief Justice of India, formed collectively after consulting senior colleagues.
- President in Articles 124(2) and 217(1) means the President acting on the advice of the Council of Ministers, and that advice must accord with the constitutional mandate.
- Reasoning: independence is basic structure; a judiciary appointed by the executive it reviews cannot be independent; "consultation" takes meaning from the scheme; primacy is collective, not personal.
- Criticism: against the plain sense of the word; subordinates democratic accountability entirely; makes the judiciary self-perpetuating; opaque; and did not cure delay or vacancies.
- It left the collegium's composition to be fixed in 1998.
The Second Judges Case
Test yourself
1. State the holding of the Second Judges case precisely. 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, that opinion being not his individual view but one formed collectively after taking into account the views of the senior colleagues required to be consulted; and that "President" in Articles 124(2) and 217(1) means the President acting on the advice of the Council of Ministers, whose advice must accord with the constitutional mandate.
2. Give the reasoning in three steps. That the independence of the judiciary is part of the basic structure, so the appointment provisions must be read to secure it; that a judiciary appointed by the executive whose acts it reviews cannot be independent of that executive, the power to appoint being a standing influence; and that "consultation" takes its meaning from the constitutional scheme rather than from ordinary usage, so in this context it requires the judicial view to prevail.
3. Why is primacy collective rather than personal, and what does that safeguard? Because the Chief Justice's opinion is to be formed after taking into account the views of the senior colleagues required to be consulted. It safeguards against concentrating the power to choose the entire higher judiciary in a single office held by one person for what is often a short tenure.
4. Give the two strongest criticisms of the decision. That it reads "consultation" against its plain sense, so the First Judges case had the better of the textual argument and the result rests on a purposive reading; and that it makes the judiciary self-perpetuating and unaccountable in its choices, since no other constitutional office in India is filled by the incumbents of that office and the collegium's deliberations are not published.
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.