Project on

CASE COMMENT

Submitted to
Yogesh Mishra

COURSE- BBA-LLB
BATCH- 2018-2023

Submitted By
Anshuman Das
Roll no. 1882015
Section – BBA.LLB (A)
Supreme Court Advocates-On-Record
Association and another (Petitioner) Vs
Union of India(Respondent)

Bench: Ratnavel Pandian, A.M. Ahmadi, Kuldip Singh, J.S. Verma, M.M.
Punchhi, Yogeshwar Dayal,
G.N. Ray, Dr. A.S. Anand, S.P. Bharucha

Introduction
The case is based on the independence of the judiciary as the part of basic
structure of the Constitution. This case is famously known as ‘Second Judges
Case”. To secure the ‘Rule of Law’ which is essential for the preservation of the
democratic system and the separation of powers which is adopted in the
constitution with the directive principles of ‘Separation of judiciary from the
executive’, the case was decided on 6th October 1993. After its judgement, the
collegium system was adopted in the appointment of judges of Supreme Court
and High Courts. Nine Judges examined two questions:
The position of the Chief Justice of India.
The justifiability of fixation of judge strength.

Facts
The nine-Judge Bench not only overruled S.P. Gupta’s case, but also devised
a specific procedure for appointment of Judges of the Supreme Court in the
interest of “protecting the integrity and guarding the independence of the
judiciary.” For the same reason, the primacy of the Chief Justice of India was
held to be essential.

The bench held that the recommendation in that behalf should be made by
the Chief Justice of India in consultation with his two senior-most colleagues
and that such recommendation should normally be given effect to by the
executive.
Thus, in 1993, the Chief Justice of India got primacy in appointing judges,
and till this time, it was the government’s job to fill vacancies in HCs and the
SC.

The matters relating to the appointment of the judiciary have plagued and
perplexed the judicial mind ever since the inception of the constitution. This
matter has to be resolved by the interpretation of the constitutional
provisions relating to the appointment of judiciary. The omnipresent bogey
haunting every pronouncement is the independence of the judiciary. A
delicate balance had to be struck between democratic control of an
essentially undemocratic institution and impartial arbitration.

The matter came up for adjudication in Sankal Chand vs. Union of India [1],
where the court upheld the transfer of the Chief Justice of Himachal Pradesh.
However, by 1982, the debate had reached epic proportions. These matters
took solid form in a batch of writ petitions questioning the move to transfer
the judges challenging the affected transfer of some judges and demanding
the justifiability of judge strength [2].

The Supreme Court, while disposing of the matter, vested the ultimate
control with the Central Government [3]. At this juncture, a bill was
introduced in the parliament seeking to amend the Constitution
(67th Amendment) Bill 1990 seeking to amend articles 124(2), 217(1),
222(1) and 231 (2) (a). This bill brought to empower the president to set up
a judicial commission known as National Judicial Commission. The avowed
objective was to implement the 121st Law Commission Report. This report
recommended that a judicial commission is set up to oversee the
appointment of the judiciary. However, nothing came of this as the bill
lapsed with the dissolution of the 9th Lok Sabha. The writ petitions seeking a
review of SP Gupta case were heard by a three judge bench, namely Chief
Justice Ranganath Mishra and Justices MN Venkatachaliah and MM Punchhi,
which recommended reconsideration [4].
ISSUES RAISED

There were broad two issues that were dealt with in this case. They are

1. Whether the opinion of the CJl should be given primacy in regard to the
appointment of Judges to the Supreme Court and the High Courts, and in
regard to the transfer of Judges of High Courts or Chief Justices of High Courts?

2. Whether these matters as well as that of fixation of the number of Judges of

each High Court is justiciable?

Petitioner’s Arguments

1. Article 50 of the Constitution urges the institutions to separate the

executive from the functioning of Judiciary as maximum as possible.
Therefore, such upper hand in appointment procedure vested in the
Executive is a clear violation of Article 50.
2. The upper hand that has been granted by the impugned 1982 decision
has made the executive “lord of the lords” and this great power has
resulted in them becoming “overlord”. The interference of executive in
judiciary’s domain must be minimized therefore; CJI’s recommendation
shall not be ignored.
3. This power of defiance with the President has made the CJI a passive
body instead of being an active participant in the appointment
procedure. This passive and uninvolved status of CJI has proved to be
counter-productive to the independence of judiciary.
4. The basic feature of Independence of Judiciary is strangulated in the
clutches of this executive superiority and this will result in erosion of a
free and fair administration of justice.
 5. Therefore, to save the basic feature of Independence of Judiciary the
court through its decision must construe the word “Consultation” as
equivalent to “Concurrence”.

Respondent’s Arguments

The president being the executive head of the nation is bestowed by the
Constitution authority to appoint judges in Supreme Court & High Court on the
aid & advice of Cabinet Ministers as specifically provided in Articles 124 & 214.
The Chief Justice of India is a mere consulter in the process and it is the
executive which possesses greatest authority. The executive differing from the
views of CJI is no impairment of Independence of Judiciary. The Constitution
itself has granted greater autonomy to the President in the appointing process.
The only role of CJI is that he has to make the President aware of the facts
unknown to him regarding the considered candidate. The CJI’s role ends at this
stage and then it is upon the President to finally appoint whoever he deems fit
to hold the office.

Independence of Judiciary is not violated due to the following:

1. The power to appoint the respective judges has been given by the
Constitution to the President and during appointment the judge owes
his faith & allegiance to the constitution and not to the appointing
authority.
2. The tenure of the office of these judges are fixed by the Constitution and
no branch either Parliament or Executive has the competence to remove
the judge from his office except in case of impeachment.
3. The perks, allowances and salary of these judges are fixed by the
Constitution and the Parliament cannot even by a unanimous bill reduce
the quantum of such salary, perks & allowances.
4. The conduct of a judge of SC or HC can never be discussed in a session of
Parliament due to the privileges granted by the Constitution.
5. Both of the higher judicial courts are Courts of Record i.e. they have the
power to punish the ones who disrespect their decision.
 6. Both the higher judicial courts are given the power to decide the
constitutionality of actions of the governments of the state as well as
union government.
Therefore, by virtue of these Constitutional provisions the Parliament or
Executive can neither impair Independence of Judiciary which is basic structure
of Constitution nor can they make an amendment in these constitutional
provisions since they constitute to be components of Independence of
Judiciary.

 Import of the Term ‘Consultation’

The first major issue was the import of the term “consultation” occurring in
Art. 124. The majority held that it indicates an integrated, participatory and
consultative process. This entails the full discharge of constitutional obligations
on the part of constitutional functionaries. Various approaches have been used
by the judges to show that “consultation” means occurrence or primacy
notably among which are”

1. The Chief Justice of India as a ‘Paterfamilias’ would be in the best

position to judge.[8]
2. In contrast to other constitutions, the Indian constitution does not
vest absolute discretion in the hands of the executive. Hence, the
Chief Justice of India cannot be regarded as an inferior position.[9]
3. The practice of appointments has become an inseparable part of the
constitution leading to the formation of a convention. This convention
does not allow the making of an appointment without the
concurrence of the Chief Justice of India.[10]
4. The central government being a litigant in a large number of cases
before the court cannot be a party to the appointment of judges.
5. All the judges have also given the maintenance of the independence
of the judiciary as a reason.
The initiation of the proposal must be made by the Chief Justice of India. In the
case of a High Court, the proposal must emanate from the Chief Justice of that
concerned High Court. The Chief Justice of India is expected to initiate any
proposal for transfers. Further, a check has been placed at the discretion of the
Chief Justice of India, who is now bound to consult with two of his senior-most
colleagues.[11] Thus the Chief Justice of India will effectively mean this judicial
troika. If a proposal for appointment is made by this judicial troika and is
turned down by the central government, there are two possibilities. These
depend upon the concurrence of the senior most colleagues. The other two
judges are of the view that it must be withdrawn, the recommendation will be
withdrawn. However, if they are in concurrence with the Chief Justice of India,
the recommendation will be made again and it has to be accepted.[12]

 The Criteria for Appointment

In relation to the appointment of the Chief Justice of India, the majority held
that seniority must be the prevailing criteria, provided of course the person in
question is fit.[13] In relation to the appointment of judges to the Supreme
Court, the seniority semi-quotes inter se in the High Court as well as their
combined seniority have to be given weightage. Further, the legitimate
expectations of the judges slated for elevation must be kept in mind.[14]

 The Transfer of High Court Judges



o Consent of the transferee is irrelevant. However, the

personal factors of the transferee must be kept in mind by
the Chief Justice of India while affecting the transfer. This is
in conformity with the decision rendered in the SP Gupta
case. The transfers affected must not be deemed to be
punitive.[15]
o Justifiability of such transfers is not possible, except on the
ground that a transfer was not made on the
recommendations of the Chief Justice of India.[16]
Whether these matters, as well as that of fixation of the number of Judges of
each High Court, is justiciable?

 Justifiability of Judge Strength

The fixation of judge strength is justiciable but, it must be shown that lack of
strength is leading to “slow justice”, (as it is mandated by article 21, that
speedy justice in courts is a fundamental right in respect of criminal trials) The
opinion of the Chief Justice of India and the Chief Justice of respective High
Court must be taken into account.[17]

Other Issues

 Appointment of the Less Privileged Class

Justice Rat navel Pandian has devoted a substantial part of his judgement to
throw light the inadequate representation of certain classes. He has adduced
statistics to show that women, OBCs, SCs, STs have not been given adequate
representation. He has, therefore, placed an onus upon the government to
forward the list of these classes, upon which the Chief Justice of India shall
decide.

Ratio Decidendi

In 1993, a nine-Judge Constitution Bench of the Supreme Court in Supreme

Court Advocates-on-Record Association Vs. Union of India (1993) by 7-2
majority overruled the decision in SP Gupta’s Case (S.P. Gupta vs. Union of
India), a late 1980’s case where a Supreme Court Constitution Bench held that
‘consultation’ does not mean ‘concurrence’ and ruled further that the concept
of primacy of the Chief Justice of India is not really to be found in the
Constitution.
Judgement
The 9 judge bench delivered the much awaited judgment on October 6,
1993. The judgment was delivered with 7:2 majority overruled its earlier
decision in S.P. Gupta and held that in issues regarding the appointment of
judges in higher judiciary the opinion of CJI must be given primacy in order to
minimize the executive influence in the Judicial functions. The majority
judgment was delivered by Justice Verma on behalf of Ray, Anand, Dayal &
Bharucjajj. while Kuldeep Singh and S.R. Pandian jj. delivered separate but
concurring opinion and Ahmadi & Punchhijj. giving the minority opinion.

The court overruling its decision of S.P. Gupta held that the largest importance
must be given to the recommendation of the Chief Justice of India formed after
taking into consideration the opinion of 2 senior most judges of the Supreme
Court. Therefore, this judgment saving the spirit of article 50 of the Constitution
minimized the executive influence in judicial appointments. Further, the
judgment thereby reduced the political influence and personal favoritism from
the appointment procedure.

The court ruled that the appointment shall be made by giving primacy to the
opinion of Chief Justice of India and the executive branch of the government
shall only play the role of checks and balances on the judges’ exercise of power.
Thus through this judgment the court corrected the mistakes committed in the
past by reducing executive influence in the appointment process and the
elimination of the political influence, biasness and favoritism. The court also
expanded the scope of the word “Consultation” by construing it in equivalent
terms with “Concurrence”.

The minority opinion by Ahmadi & Punchhi JJ. was that if as per majority’s view
the primacy is to be given to the CJI then as a result of this upper hand the role
of other constitutional functionaries discussed in the relevant provision of
appointment procedure would become minimal and close to negligible. This
erosion of power will result in an injury irreversible to the basic facet of
Constitution i.e. Separation of Power. In their opinion if this would be the case
then there is way too much levy on the part of the Judiciary and this inequality
in the panel would often result in biasness, conflict and finally to chaos.

The majority along with delivering this landmark judgment also provided
guidelines which must be followed in future in the procedure of appointment of
judges in higher judiciary. The majority bench provided that in case there is a
need of appointment of judge of apex court the initiation of proposal has to be
from CJI and in matters of High Court through CJ of the respective High Court.
The same way must be adopted for the transfer however, transfer of CJ of HC
must be on the initiation of CJI. Reiterating the ratio of the case the court held
that no appointment shall be made unless it is in conformity with the opinion of
CJI. For the appointment of CJI the senior most judge of the apex court must be
appointed as the next CJI.

The guidelines framed by the court are as follows:

1. The CJI’s opinion must be given primacy but he must consult with his
two senior-most colleagues.
2. All the constitutional functionaries involved in the appointment
process must participate harmoniously.
3. Transfer of Judges cannot be challenged in the courts.
Critical Analysis
The decision of this case is a very important and sound decision in the sense that
the majority overruled its earlier decision which gave the power of final word to
the government. The majority now gave up a much more liberal and flexible
interpretation of the word “Consultation” which earlier meant an opinion with
no binding value. This position was changed by the judgment as now
“Consultation” was meant as “Concurrence” and therefore granted it binding
value. By the virtue of this decision the government cannot ignore the opinion
and recommendation of the Chief Justice of India thereby reducing executive
influence, political biasness, favoritism and influence. The decision upheld the
validity of Article 50 which demanded the state to minimize the executive
influence from the judicial works.

The majority bench shifting its stance on the matter considered that in matters
of selection of the best suitable candidate for the office the CJI has the most
extensive and thorough knowledge and that should be respected. The decision
sought to strengthen the foundational features and basic structure of the
constitution. The court has further to balance the powers of the panel had
recommended that the process should be treated as one with mutual
participation by taking into consideration the opinion of each and every
consultee and giving the greatest weight to the CJI. In this way the powers of all
the member participants would be balanced and there would be no misuse of
authority.

The law laid down in this decision is one of great importance and therefore must
be cherished. This decision minimized the political influence that the judiciary
was suffering since independence. It also checked the government’s practice to
appoint a judge bypassing the opinion of CJI.

However, in 2008 Justice Verma in a speech said that judicial appointments have
taken shape of judicial disappointment. In an interview he was asked ti further
elucidate his point. To this query he said that his opinion in this case was
seriously misunderstood as well as misused. He said that in his judgment he
meant that the process should be one where each member participates equally.
What he meant was that the appointment process must be joint and
participatory which nowadays has become redundant and one sided therefore,
a rethink is required.

Therefore, considering Justice Verma’s majority opinion in the judgment vis-à-

vis his opinion in 2008 there seems a flaw in the judgment which must be
resolved to reduce the friction between the constitutional authorities.

Conclusion
The overall effect of the decision was great as in history quite a many times
government in order to influence a decision played with the appointments as
they were playing a game of Chess. The decision finally stored the power of
appointment in the hands of CJI to minimize and control the executive influence
in judicial appointments. Therefore, due to this decision to a great extent the
political influence, biasness and favoritism was reduced in judicial matters which
boosted the foundational and basic structure of constitution i.e. Independence
of Judiciary.

The majority now gave up a much more liberal and flexible interpretation of the
word “Consultation” which earlier meant an opinion with no binding value. This
position was changed by the judgment as now “Consultation” was meant as
“Concurrence” and therefore granted it binding value. Therefore, now the
government cannot bypass the opinion of CJI as it used to do in the past to satisfy
their political exigencies.

However, taking in regard Justice Verma’s recent comments on the

interpretation of his decision gives chills as there has been a lot of corruption in
the higher judicial branch. Taking in regard his opinion there is surely a need to
rethink the matter and to come up with a stringent solution
Aftermath of 2nd Judges Case
The same question was again brought into question in re Presidential Reference
where again a nine – judges bench affirmed the decision laid down in 2nd judges
case and further added that sole opinion of CJI is not maintainable and he must
consult with a collegium of four senior-most judges of Supreme Court. The court
increased the number of judges with who CJI must consult before arriving at a
conclusion. Such decision can only be challenged on the ground that the
guidelines framed by the 1993 & 1999 judgment have not been followed.

Then in 2014 the newly elected BJP Government brought 99th Constitutional
(Amendment) Act, 2014 amending the Articles 124(2), 127 & 128 and also
inserted Article 124 A,B&C. The combined effect of this amendment was the
establishment of National Judicial Appointment Commission who would have
the sole power in matters of appointment of judges in higher judiciary. The
commission was made up of the following members

1. CJI (Chairperson ex-officio)

2. 2 senior-most judges of the supreme court (ex-officio members)
3. The Union Minister of Law & Justice
4. Two eminent personality (nominated by a committee consisting of PM,
CJI &LoP )

This 99th constitutional amendment was further challenged before a five judge
(Kehar, Lokur, Goel, Joseph & Chelameshwar) bench in Supreme Court
Advocate-on-Record Association v. Union of India[11]on the grounds that the
said amendment is violative of Independence of Judiciary which is a basic
feature of Constitution. Therefore, the majority bench stuck down the
99th Constitutional Amendment as it was violative of Basic Structure. However,
Justice Chelameshwar dissented with the majority and upheld the validity of the
impugned amendment.