The Second Judges Case: A Paradigm Shift in Indian Judicial Appointments

The Second Judges Case: A Paradigm Shift in Indian Judicial Appointments and the Primacy of the Judiciary

Introduction

The appointment of judges to the higher judiciary in India has been a subject of profound constitutional debate and interpretation. Central to this discourse is the landmark decision in Supreme Court Advocates-On-Record Association And Others v. Union Of India (1993), popularly known as the Second Judges Case.[1] This judgment fundamentally reshaped the understanding of the consultative process involved in judicial appointments under Articles 124(2) and 217(1) of the Constitution of India, establishing the primacy of the Chief Justice of India (CJI) and laying the groundwork for the collegium system. This article analyzes the Second Judges Case, its antecedents, its core holdings, its subsequent clarifications, and its enduring legacy in safeguarding judicial independence.

Background: Constitutional Provisions and the First Judges Case

The Constitution of India, under Article 124(2), provides for the appointment of Supreme Court judges by the President after "consultation" with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary. Crucially, it mandates that "in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted." Similarly, Article 217(1) deals with the appointment of High Court judges by the President after "consultation" with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court concerned.

The interpretation of the word "consultation" became a significant point of contention. In S.P. Gupta v. Union of India (1981 Supp SCC 87), commonly referred to as the First Judges Case, the Supreme Court, by a majority, held that "consultation" did not mean "concurrence." The executive was not bound by the opinion of the CJI, and the ultimate power of appointment rested with the executive. This interpretation was perceived by many as undermining the independence of the judiciary, a cornerstone of the Indian constitutional scheme.[2] The Second Judges Case directly arose from the need to reconsider this position.

The Second Judges Case: Supreme Court Advocates-On-Record Association v. Union of India (1993)

The Second Judges Case[1] re-examined the constitutional provisions governing judicial appointments. The petitioners argued for the primacy of the CJI's opinion to ensure judicial independence from executive influence.

Key Issues Addressed

The Supreme Court in the Second Judges Case grappled with several critical issues, including:[1]

  • Whether the function of rendering 'advice' relating to the appointment of Judges under Articles 124(2) and 217(1) of the Constitution is confined to judicial functionaries, excluding the Council of Ministers' advice under Article 74(1).
  • Whether the opinion of the CJI is entitled to primacy in the selection of Judges to the Supreme Court and the High Courts.
  • Whether the executive is bound by the advice/recommendation of the CJI in the process of consultation under Articles 124(2) and 217(1).

Landmark Rulings and Rationale

The majority in the Second Judges Case overruled the decision in the First Judges Case, fundamentally altering the landscape of judicial appointments.[2]

1. Primacy of the Chief Justice of India: The Court held that the opinion of the CJI is entitled to primacy in the matter of selection of Judges to the Supreme Court and the High Courts.[1] This was deemed essential for safeguarding the independence of the judiciary, which the Court reiterated is a basic feature of the Constitution.[1] The Court reasoned that "the opinion of the judiciary ‘symbolised by the view of the Chief Justice of India’, is to be obtained by consultation with the Chief Justice of India; and it is this opinion which has primacy."[12]

2. "Consultation" Redefined: The term "consultation" was interpreted to mean that the opinion of the CJI, formed after due consultation with other senior judges, should have the "greatest weight."[12] While the executive could act as a check, the power was not to be an absolute veto. The Court emphasized that ‘Consultation’ should have sinews to achieve the constitutional purpose and should not be rendered sterile by a literal interpretation.”[1] Effectively, this meant that the executive would be bound by the CJI's recommendation, except for strong cogent reasons disclosed to the CJI.[1]

3. Plurality in Consultation – The Genesis of the Collegium: The judgment stressed that the CJI's opinion should not be an individual opinion but an institutional one, formed after consulting with senior colleagues. It stated, "A further check in that limited sphere is provided by the conferment of the discretionary authority not to one individual but to a body of men, requiring the final decision to be taken after full interaction and effective consultation between them, to ensure projection of all likely points of view and procuring the element of plurality in the final decision with the benefit of the collective wisdom of all those involved in the process."[9], [11] This laid the foundation for the collegium system.

4. Insulation from Executive Influence: The Court held that the function of rendering 'advice' relating to the appointment of Judges under Articles 124(2) and 217(1) is confined to judicial functionaries and is excluded from the scope of advice rendered by the Council of Ministers under Article 74(1) of the Constitution.[1] This was a significant step towards ensuring the "total insulation of judiciary from all forms of influence from the executive and other branches of Government," which the Court identified as a basic feature of the Constitution.[1]

5. Independence of the Judiciary: The judgment repeatedly underscored that the independence of the judiciary is an essential attribute of the Rule of Law and part of the basic structure of the Constitution.[2] The reinterpretation of the appointment process was aimed at strengthening this independence. The Court observed that "Judges should be of stern stuff and tough fibre, unbending before power, economic or political, and they must uphold the core principle of the rule of law."[1]

Elaboration and Solidification: The Third Judges Case (Special Reference No. 1 of 1998)

Following the Second Judges Case, doubts arose regarding the interpretation of the law laid down. This led to a Presidential Reference under Article 143 of the Constitution, resulting in the Special Reference No. 1 of 1998 (Third Judges Case).[10], [14]

The Third Judges Case did not overturn the Second Judges Case but rather clarified and elaborated upon its principles, particularly concerning the consultative process.[14] It institutionalized the "collegium" system:

  • For Supreme Court Appointments: The CJI must consult a collegium of the four seniormost puisne Judges of the Supreme Court. Even if two judges give an adverse opinion, the CJI should not send the recommendation to the Government.[14]
  • For High Court Appointments: The CJI must consult a collegium of the two seniormost puisne Judges of the Supreme Court. The Chief Justice of the High Court is expected to consult his two seniormost puisne Judges.[17] The views of Supreme Court judges conversant with the affairs of the concerned High Court should also be taken.[17]
  • Written Opinions: The requirement for opinions to be in writing and transmitted to the Government of India was emphasized.[14]
The Third Judges Case affirmed that the "primacy of the judiciary" in appointments, as established in the Second Judges Case, was a constituent of the independence of the judiciary.[16]

Judicial Scrutiny and the Evolution of Consultation

The Second and Third Judges Cases also delineated the scope of judicial review in matters of judicial appointments. It was held that judicial review is permissible primarily on two grounds: ‘lack of eligibility’ and ‘lack of effective consultation’.[12] It would not lie on the content of the consultation itself.[12]

The concept of "effective consultation" implies that all material and information must be placed before all constitutional functionaries involved in the process. As observed in Mahesh Chandra Gupta v. Union Of India And Others (2009), if relevant information is not forwarded to the Supreme Court Collegium, it could constitute a ground for judicial review based on lack of effective consultation.[17]

Impact and Legacy of the Second Judges Case

The Second Judges Case marked a significant assertion of judicial independence in India. It shifted the balance of power in judicial appointments decisively towards the judiciary, aiming to insulate it from political influence. The judgment recognized that "conventions are a means of bringing about constitutional development without formal changes in the law."[1]

However, the collegium system, born out of the Second and Third Judges Cases, has faced criticism for its perceived opacity and lack of accountability. These concerns led to the enactment of the Constitution (Ninety-ninth Amendment) Act, 2014, and the National Judicial Appointments Commission (NJAC) Act, 2014, which sought to replace the collegium with a commission having representation from the executive and civil society.[2]

In Supreme Court Advocates-On-Record Association And Another v. Union Of India (2015) (the NJAC Case or Fourth Judges Case), the Supreme Court struck down the Ninety-ninth Amendment and the NJAC Act as unconstitutional and void, holding that they violated the independence of the judiciary, a basic feature of the Constitution.[2] The Court reaffirmed the principles laid down in the Second and Third Judges Cases, emphasizing that the primacy of the judiciary in appointments, as interpreted in these cases, was crucial for maintaining judicial independence.[2], [16] The Court found it "difficult to accept the contention ... that the Second Judges case requires reconsideration on merits," noting that constitutional authorities had accepted the law laid down therein.[5]

The argument that the Second Judges Case involved "judicial activism (or, judicial legislation)" by assigning an innovative meaning to "Chief Justice of India" as a plurality of judges[21] was effectively addressed by the Supreme Court in Shanti Bhushan v. Supreme Court Of India (2018). The Court clarified that reading "Chief Justice" as "Collegium" in Article 124 had a constitutional basis due to the explicit mention of consultation with other judges, unlike in matters of case allocation.[18]

Conclusion

The Second Judges Case stands as a watershed moment in Indian constitutional law, fundamentally reconfiguring the process of judicial appointments to safeguard the independence of the judiciary. By vesting primacy in the opinion of the Chief Justice of India, formed through a process of collegial consultation, the Supreme Court sought to create a bulwark against executive interference. While the ensuing collegium system has had its share of debate, the core principles enunciated in the Second Judges Case—the primacy of an institutionalized judicial opinion and the imperative of judicial independence as a basic feature of the Constitution—have been consistently upheld and reinforced, most notably in the NJAC judgment. The decision continues to shape the contours of judicial appointments and the delicate balance between the judiciary and the executive in India.

References

  1. Supreme Court Advocates-On-Record Association And Others v. Union Of India . (1993 SCC 4 441, Supreme Court Of India, 1993)
  2. Supreme Court Advocates-On-Record Association And Another v. Union Of India (Recusal Matter) . (2016 SCC 5 1, Supreme Court Of India, 2015)
  3. Material 3 (All India Institute Of Medical Sciences Employees' Union (Regd.) Through Its President v. Union Of India And Others) was deemed not directly relevant to the core topic.
  4. Material 4 (Kamal Singh Petitioners v. The State Of Madhya Pradesh Now Chhattisgarh S) provided no substantive content.
  5. Supreme Court Advocates-On-Record Association And Another v. Union Of India (Recusal Matter) . (Supreme Court Of India, 2015) [Same as Material 2, different extract/citation format in source]
  6. Material 6 (Daya Sagar Yadav Sagar v. State Of Chhattisgarh) provided no substantive content.
  7. Material 7 (The Commissioner Of Customs v. M/S Pfizer Products India Pvt. Ltd.) provided no substantive content.
  8. Material 8 (Mohd. Hanif v. State Of Maharashtra) provided no substantive content.
  9. In The Supreme Court Of India (In ... v. In The Supreme Court Of India (In (Supreme Court Of India, 1998) [Extract related to Second Judges Case on plurality]
  10. Special Reference No. 1 Of 1998, Re (Supreme Court Of India, 1998) [Presidential Reference leading to Third Judges Case]
  11. In The Supreme Court Of India v. Civil Advisory Jurisdiction (Supreme Court Of India, 1998) [Extract related to Second Judges Case on plurality, similar to Material 9]
  12. Registrar General, High Court Of Madras v. R. Gandhi And Others (Supreme Court Of India, 2014)
  13. Indian Society Of Lawyers v. President Of India (Allahabad High Court, 2011)
  14. Special Reference No. 1 Of 1998, Re (1998 SCC 7 739, Supreme Court Of India, 1998) [The Third Judges Case judgment]
  15. Supreme Court Advocates-On-Record Association And Another Petitioners v. Union Of India (2015 SCC ONLINE SC 1322, Supreme Court Of India, 2015) [NJAC Case discussion on MoP]
  16. Supreme Court Advocates-On-Record Association And Another v. Union Of India . (2016 SCC 5 1, Supreme Court Of India, 2015) [Per Khehar, J. in NJAC Case]
  17. Mahesh Chandra Gupta v. Union Of India And Others (2009 SCC 8 273, Supreme Court Of India, 2009)
  18. Shanti Bhushan v. Supreme Court Of India Through Its Registrar And Another (2018 SCC 8 396, Supreme Court Of India, 2018)
  19. R.H Raddi v. The High Court Of Karnataka, Rep., By Its Registrar General And Others* (Karnataka High Court, 2012)
  20. C.Y Iiiur And Other v. The High Court Of Karnataka Represented By Its Registrar General And Others* (Karnataka High Court, 2006)
  21. Supreme Court Advocates-On-Record Association And Another v. Union Of India (Recusal Matter) . (Supreme Court Of India, 2015) [NJAC Case, arguments on Second Judges Case as judicial activism]
  22. In The Supreme Court Of India (In ... v. In The Supreme Court Of India (In (Supreme Court Of India, 1998) [Extract on transfer of judges and collegial consultation post-Second Judges Case]
  23. Supreme Court Advocates-On-Record Association And Another v. Union Of India (Recusal Matter) . (Supreme Court Of India, 2015) [NJAC Case, overruling of First Judges Case]