The Third Judges Case

In one line

Five years after creating the collegium, the Court was asked what it actually was, and answered: the Chief Justice plus the four senior-most judges for the Supreme Court, plus the two senior-most for a High Court.

In the wording a student can write in an exam: In re Special Reference No. 1 of 1998, (1998) 7 SCC 739, the Third Judges case, was an advisory opinion given by nine judges on a Presidential Reference under Article 143. It held that the Chief Justice of India must consult a plurality of judges and cannot act in his individual capacity; that for appointments to the Supreme Court the collegium consists of the Chief Justice of India and the four senior-most puisne judges; that for appointments to a High Court the Chief Justice consults the two senior-most judges of the Supreme Court; and that an opinion formed without such consultation is not binding on the Government.

What a Presidential Reference is

Article 143(1) permits the President, where a question of law or fact of public importance has arisen or is likely to arise, to refer it to the Supreme Court for its opinion. The opinion is advisory: it does not decide a lis and is not, strictly, binding. In practice it is followed, and this reference has been treated as settled law ever since.

The route was used because there was no litigation in which the questions could be raised, and because the Government and the Chief Justice of India had differed on how the Second Judges case was to be worked.

The questions referred

The reference asked, among other things:

• whether "consultation with the Chief Justice of India" in Articles 217(1) and 222(1) requires consultation with a plurality of judges in the formation of the opinion of the Chief Justice, or whether his sole individual opinion constitutes consultation;
• whether the transfer of judges is judicially reviewable, in the light of the Second Judges case's observations that transfer is not justiciable on any ground and its further observation that limited review is available;
• whether Article 124(2) as interpreted requires the Chief Justice to consult only the two senior-most judges or whether there should be wider consultation according to past practice;
• whether the Chief Justice of India is entitled to act solely in his individual capacity, without consulting other judges of the Supreme Court, in respect of material conveyed by the Government against a recommended candidate.

The answers

Plurality is required. The Chief Justice of India cannot act in his individual capacity. An opinion formed without consulting the required judges is not an opinion within Articles 124(2) and 217(1) at all.

The Supreme Court collegium. The Chief Justice of India and the four senior-most puisne judges of the Supreme Court. Ordinarily one of those four will succeed as Chief Justice, but if the successor Chief Justice is not among the four he must invariably be made part of the collegium, because the judges appointed will serve during his term and he should have a hand in their selection. It is not practicable to include the senior-most judge who comes from the same High Court as the person recommended, unless he is part of the collegium as one of the four.