Supreme Court Advocates-on-Record Association and

another vs Union of India

Supreme Court of India, dated 06 October 1993

AIR 1994 SC 268

Honorable Judges:

1. Justice Ratnavel Pandian,

2. Justice A.M. Ahmadi,
3. Justice Kuldip Singh
4. Justice J.S. Verma,
5. Justice M.M Punchi,
6. Justice Yogeshwar Dayal,
7. Justice G.N. Ray,
8. Justice Dr. A.S Anand,
9. Justice S.P. Bharucha

Introduction:

This case deals mainly with the question of the primacy of the power of appointment
or transfer of judges. This is one of the landmark cases in constitutional history. It is
also known as the second judge’s case, which is a part of the four judges’ case. These
cases together gave guidelines and other aspects on the appointment and transfer of
judges of the High Court and the Supreme Court. It mainly focuses 4 Articles of the
Constitution.

Article 50: Separation of powers of Judiciary and Executive.

Articles 124 and 124(2): Appointment of judges by the President after consultation
with the Chief Justice.

Article 216: Appointment of judges. Prescribed strength of High Courts.

Article 217(1): Appointment and conditions of the office of a judge of a High Court.
Brief Facts:

This particular case came up as a writ petition appealing to reconsider the judgment
passed by the majority in the S.P. Gupta vs Union of India (AIR 1982 SC 149) case. In
the S.P. Gupta case, it was held that the executive would have the final and primary
power in deciding on matters about the appointment and transfer of judges of the
High Court and Supreme Court.

This case focuses on the aspect of providing independence to the Indian Judiciary as
a part of the basic structure doctrine of the Indian Constitution. Under the S.P.
Gupta case, the executive was given major importance and his decision concerning
the aspect was treated as final. However, this affected the integrity and independent
powers of the judiciary, and thus this matter was taken into consideration. It was
argued that the power of the executive in matters about the judiciary must be
minimized and the Chief Justice must be given more powers.

Giving such primacy to the executive resulted in favoritism in the appointment

system and this hurt the country, as the judiciary is usually the last ray of hope for
the citizens of the country and when there is discrimination there, they don’t have
any other place to knock. In the case, of the Union of India vs Sankal Chand Himatlal
Sheth (1977 AIR 2328), the term ‘consultation’ was interpreted. The court held that
all constitutional functionaries must have equal power, however, the President can
choose to differ from the names given for consultation by the Chief Justice of India.
In this judgment, it was held that the word ‘consultation’ did not mean ‘concurrence’
and thus the executive can choose to differ on his reasoning and choice. This case
along with the S.P. Gupta case provided an upper hand to the executive and hurt the
independent function of the judiciary.

Issues Raised:

 Should the opinion of the executive be given primary importance in deciding

the matters relating to the transfer and appointment of judges to the High
Court and Supreme Court?
 What should the judge’s strength be in the High Court?
 Examining the position of the Chief Justice of India on the aspect of
appointment and transfer of judges and the fixation of judge’s strength.
  Can article 124(2) and 217(1) of the Constitution be interpreted in such a way
as to give the judiciary more power as compared to the executive?
 Does the term ‘consultation’ diminish the role of CJI in matters about judicial
appointments?

Arguments Advanced:

Petitioner: According to article 50 of the Indian Constitution, any organ of the

government can’t interfere with the core powers and duties of the other organs. Thus,
giving the executive primacy in the appointment and transfer of judges is violative of
this feature of the constitution. The role of the executive must be minimized and
should only be to the extent of consultation. Giving higher powers to the executive in
terms of appointment instead of the Chief Justice has reduced the role of the CJI to
be a merely passive one instead of an active one. Such an act is violative of the
independent feature granted to the judiciary. Thus, the courts must treat the term
‘consultation’ as equivalent to ‘concurrence’.

Respondent: The respondents contended that the executive has always given
importance to the decision and advice given by the Chief Justice in matters of
appointment. There has never been an instance where the executive has by
himself/herself given an appointment to any member of the judiciary without prior
consultation of the CJI. And according to Articles 124 and 214, the President is given
the power to make appointments in consultation with the cabinet ministers. Thus,
acting according to the provisions of law, the Chief Justice of India is treated as a
consultor and the final authority of decision-making lies with the President.

The respondents also claim that through this process there is no violation of the
independence of the judiciary. The main power lies with the constitution and every
act of appointment or removal or transfer is done according to those provisions and
neither parliament nor the executive has any legal right to differ from the same.

Judgment:

Affirmative judgment ( 7 judges):

There were a lot of issues raised in this case, which were considered by the nine-
judge bench. The bench overruled the judgment passed in the S.P. Gupta case, where
it was held that giving superior powers to the Chief Justice is nowhere mentioned in
the constitution and thus the word ‘consultation’ could not be taken to mean the
same as ‘concurrence’.

They also held that the decision to appoint judges must be a collective one and all the
organs must work collectively in selecting the best suitable candidate and must arrive
at an agreed decision with the aid of each other. In doing so the question of primacy
wouldn’t arise at all, and such an act would also be under the provisions of the
Constitution. However, situations might arise where the judiciary and executive have
differing opinions about a particular candidate, and in such situations, the opinion of
the Chief Justice would be given primacy. Every appointment made must conform
with the view of the Chief Justice, however, in exceptional situations where the
reasons are prior informed to the Chief Justice, a candidate recommended by the
Chief Justice might not be appointed. The same would be the case in situations about
the transfer of judges.

Before the time when the constitution came into effect, the appointments were made
at the absolute discretion of the crown, however, to prevent the influence of political
considerations, the provisions of the constitution were written and thus giving
absolute power to the executive, who is an organ of the Government of India, would
be termed as violative of the provisions of the constitution.

The Chief Justice is well aware and equipped in assessing the best possible candidate
for the appointment, and the executive’s role must be reduced to a point of keeping a
check on the use of power by the CJI, and thus avoid the shift of power to the hands
of just organ, the word ‘consultation’ was used instead of ‘concurrence’.

About the aspect of fixation on the strength of judges in a High Court, it is a judicial
discretion, as according to the provisions of Article 21 speedy justice must be ensured
to every individual, and where the Chief Justice of the High Court and India feel that
the current strength is insufficient to handle the task, judicial discretion can be
utilized and the strength might be changed accordingly. The Chief Justice of the High
Court and the Chief Justice of India act on behalf of the whole judiciary and thus
their opinion must be given primacy.

Thus, the role of Chief Justice must be given primacy, however, it cannot mean that
the executive’s opinion is ruled out. Both parties must act on a level of togetherness
and mutuality, and the wishes and opinions of both must be given importance. One
can’t just ignore the choice of others in these matters.

The judgment was given by a majority of 7:2. The majority also ruled that in cases for
appointment of judges to the higher courts, the proposal must come from the Chief
Justice of India, and about other courts, it must come from the respective Chief
Justice of High Court of that particular state. And all such appointments must be
made in conformity with the decision of the CJI.

Dissenting Judgment: (2 judges):

However, Justice Ahmadi and Punchi were of a different opinion. They contended
that giving primacy to the Chief Justice would mean that too much levy is given to
the judiciary. This might result in an irreversible injury caused to the basic facet of
the Indian Constitution. And such biases and inequality of powers might also result
in favoritism, conflict, and chaos in the selection of candidates.

Collegium System:

A collegium system was established after this case, to aid in matters relating to the
appointment of judges. The collegium is set up both at the High Court and the
Supreme Court. The Supreme Court collegium comprises the CJI and 4 senior-most
judges of that court. A High Court collegium is headed by the Chief Justice of that
particular court along with 4 senior-most judges of that court. A recommendation by
the High Court collegium first gets approval from the Supreme Court collegium and
then it reaches the government. Thus, the role of government comes after the
approval/recommendation of the collegium.

My Analysis:

The judgment passed in this case is very important in the aspect of the separation of
powers. As seen earlier in various instances, a member of the government might tend
to abuse his power or try to add in more members who would be in his favor or
support the government. Such aspects would hurt the judiciary and also lead to the
loss of trust by the public in the judiciary. The courts are one such place where there
is less chance of favoritism and assurance to grant an impartial and valid judgment.
Thus, I feel the judgment passed by the majority in overruling the S.P. Gupta case
and giving more power to the Chief Justice in matters about the judiciary was valid.

However, we can’t ignore the fact that there might be instances where even the Chief
Justice might misuse this power. The collegium system is a very closed system and
the people on the outside are unaware of how things take place. Even the advocates
are unaware if their names are given for consideration for judges, and which
particular judge would be transferred from which court. This method has reduced the
scope of favoritism and biasness caused by the executive but there is still a loophole
where the same things might occur on the inside by the Chief Justice. The system of
collegium is also interpreted only through judgments and there is no particular law
focusing on the same aspect, thus the scope of abuse is even higher.

Thus, this judgment has on one side ensured justice and relief to all those aggrieved
by the previous judgment and the bias caused due to primacy of the opinion of the
executive. But it has also led to the evolvement of various other questions about
different matters. The debate about who has more power is resolved but the system
evolved through this case is still a largely debated issue and the judiciary must ensure
that all the queries are answered and a more stringent and transparent procedure is
established to resolve the problems.