S.P. Gupta v Union of India (First Judges' Case)

Facts

A circular by the Union Law Minister recommended that additional High Court judges be asked for consent to transfer and that consent be obtained for appointment elsewhere, raising concerns about executive interference with the appointments and transfer of High Court judges. Lawyers challenged the circular and related non-appointments/transfers as violating judicial independence. The seven-judge bench heard a batch of petitions on the meaning of 'consultation' and the locus and scope of judicial review.

Issues

• Does 'consultation' with the Chief Justice of India in Articles 124(2) and 217(1) require the CJI's concurrence, or merely a consultative role?
• Where constitutional functionaries differ, whose opinion has primacy in judicial appointments and transfers?
• Do advocates have standing to challenge appointments/transfers, and is the process subject to judicial review?

Arguments

The petitioners argued that to protect judicial independence and separation of powers, the CJI's opinion must have primacy and 'consultation' should approach concurrence. The Union Government argued that on a plain reading the constitutional functionaries play only a consultative role and the power of appointment resides solely and exclusively with the executive.

Held

By a 4:3 majority, with each judge writing separately, the Court dismissed the petitions and held that 'consultation' does not mean 'concurrence'. Bhagwati J held that the CJI, the Chief Justice of the High Court and other judges are merely consultative constitutional functionaries, and the power of appointment resides solely with the Union Government. Where the functionaries differ, none of their opinions is entitled to primacy and the Central Government may take its own decision on which opinion to accept. The Court did, however, liberalise standing, recognising the right of lawyers to maintain the petitions.

Ratio decidendi

In appointment and transfer of superior court judges, 'consultation' under Articles 124(2) and 217(1) is not concurrence; the executive has the final word and no constitutional functionary's view, including the CJI's, enjoys primacy.

Significance

The foundational 'First Judges' Case' that located ultimate appointment power in the executive. Its correctness was doubted in Subhash Sharma v Union of India and it was expressly overruled by the Second Judges' Case (1993), which reversed the position and gave primacy to the judiciary, ushering in the collegium system.

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