Supreme Court Advocates-on-Record Association v Union of India (Second Judges' Case)

Facts

Following doubts cast on S.P. Gupta in Subhash Sharma v Union of India, a nine-judge bench was constituted to reconsider the meaning of 'consultation' and the primacy of the CJI in the appointment and transfer of judges of the Supreme Court and High Courts. The case arose against the backdrop of executive supersessions and transfers of judges during the 1970s that had undermined judicial independence.

Issues

• Should S.P. Gupta be overruled on the meaning of 'consultation' in Articles 124(2) and 217(1)?
• Does primacy in the appointment of superior court judges vest with the judiciary or the executive?
• How is the opinion of the CJI to be formed for it to qualify as constitutional 'consultation'?

Arguments

The petitioners contended that judicial independence and separation of powers, part of the basic structure, require that the judiciary, not the executive, have primacy in appointments, so that 'consultation' must mean an opinion binding on the government. The Union defended executive primacy as held in S.P. Gupta.

Held

Overruling S.P. Gupta, the majority held that primacy in the appointment of superior court judges must vest with the judiciary. The opinion of the CJI is not his individual view but one 'formed collectively by a body of men at the apex level in the judiciary', and is binding on the executive once formed in the prescribed consultative manner. For Supreme Court appointments the CJI must consult the two seniormost judges; the seniority-cum-merit position was retained for the CJI's office (the 'seniority alone' rule was qualified by merit). The Court laid down a detailed methodology, giving rise to the collegium system in both the Supreme Court and High Courts.

Ratio decidendi

'Consultation' in Articles 124(2) and 217(1) carries primacy for the judiciary: the CJI's recommendation, formed collectively with senior colleagues, is binding on the executive in judicial appointments and transfers, securing judicial independence as part of the constitutional scheme.

Significance

The landmark that created the collegium system and shifted primacy from the executive to the judiciary, making judicial independence in appointments a constitutional cornerstone. It was clarified and operationalised by Re Special Reference No. 1 of 1998 (Third Judges' Case) and reaffirmed when the NJAC (99th Amendment) was struck down in 2015.

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