The Third Judges Case
Chapter Forty-Six
Syllabus topic 3, "Judicial Process in India"
Pages 187 to 190 of 356
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.
The Third Judges Case
The High Court collegium. For appointments to a High Court, the Chief Justice of India forms his opinion in consultation with the two senior-most judges of the Supreme Court, together with the views of the Chief Justice of the High Court concerned and any judge of the Supreme Court conversant with that High Court.
Effect of non-compliance. An opinion formed without the required consultation is not binding on the Government, which is the sanction that makes the requirement real.
Transfers. The Chief Justice must consult a plurality for transfers as well, and limited review remains available.
Why the composition matters
It disperses an enormous power. The choice of every judge of the higher judiciary in a country of this size is concentrated in five people, which is few, but not one.
It builds in continuity. Requiring the successor Chief Justice to be included, where he is not among the four, means the person who will work with the appointees participates in choosing them. Chief Justices in India often serve short tenures, and without this the outgoing Chief Justice would fill the court for his successor.
It manages an obvious conflict. Excluding, so far as practicable, the senior-most judge from the same High Court as the candidate is a rule against the appearance of favour.
The criticism
It is not in the Constitution. The composition of the body that appoints every judge of the higher judiciary is fixed by an advisory opinion, and can in principle be altered the same way.
Seniority is not merit. Membership of the collegium depends on date of appointment, which selects for longevity rather than for judgment about candidates.
There is still no record. The reference fixed who decides and not how, so the transparency criticism is untouched.
It did not fix the timelines. Nothing requires the Government to act on a recommendation within any period, which is the practical weakness that persists.
A worked example
A vacancy arises in the Supreme Court. The Chief Justice, having spoken privately to one senior colleague, recommends Y.
Is the recommendation valid? No. The Chief Justice may not act in his individual capacity, and consultation with one colleague is not consultation with the collegium of four.
The Third Judges Case
What is the consequence? The opinion is not an opinion under Article 124(2), so the Government is not bound by it and may decline to act on it.
What is the correct course? The Chief Justice forms his opinion in consultation with the four senior-most puisne judges, including the successor Chief Justice if he is not among them, and excluding so far as practicable the senior-most judge from the candidate's own High Court unless he is one of the four.
Quick revision
- In re Special Reference No. 1 of 1998, (1998) 7 SCC 739, decided 28 October 1998 by nine judges, on a Presidential Reference under Article 143.
- The Chief Justice of India must consult a plurality of judges and may not act in his individual capacity.
- Supreme Court appointments: the Chief Justice and the four senior-most puisne judges; the successor Chief Justice is invariably included if not among the four.
- High Court appointments: the Chief Justice with the two senior-most judges of the Supreme Court, plus the views of the Chief Justice of that High Court.
- So far as practicable, the senior-most judge from the candidate's own High Court is excluded.
- An opinion formed without the required consultation is not binding on the Government.
- Criticism: the composition is not in the Constitution; seniority is not merit; no record is kept; and no timelines bind the Government.
Test yourself
1. What was the procedural route of the Third Judges case, and why was it used? A Presidential Reference under Article 143(1), which permits the President to refer a question of law or fact of public importance to the Supreme Court for its advisory opinion. It was used because there was no pending litigation in which the questions could be raised, and because the Government and the Chief Justice of India had differed over how the Second Judges case was to be worked.
2. State the composition of the collegium for each level. For the Supreme Court, the Chief Justice of India and the four senior-most puisne judges, with the successor Chief Justice invariably included if he is not among those four. For a High Court, the Chief Justice of India in consultation with the two senior-most judges of the Supreme Court, together with the views of the Chief Justice of the High Court concerned and of any Supreme Court judge conversant with that High Court.
3. Why must the successor Chief Justice be included where he is not among the four? Because the judges appointed will serve during his term, so he should have a hand in their selection. Indian Chief Justices often hold office for short periods, and without the rule an outgoing Chief Justice would in effect fill the Court for his successor.
The Third Judges Case
4. What is the sanction for failing to consult as required? That the opinion so formed is not an opinion within Articles 124(2) and 217(1), and is therefore not binding on the Government. Since the whole force of the collegium rests on the binding character of a properly formed opinion, non-compliance removes it.
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.