Supreme Court Advocates on Record Association v Union of India (Second Judges case)

Facts

• Articles 124(2) and 217(1) require the President to appoint Judges after consultation with specified functionaries, and always with the Chief Justice of India.
• In S P Gupta v Union of India (1982) the Court had held that consultation did not mean concurrence and that the ultimate power of appointment lay with the executive.
• Over the following decade there was widespread concern about executive influence over appointments, about delays and supersessions, and about the use of transfers under Art.222.
• The correctness of S P Gupta was accordingly referred to a Bench of nine Judges.
• The question was framed as one of the meaning of consultation and of who has primacy where the consultees differ.

Issue

1. What is the meaning of "consultation" in the appointment articles, and who has primacy in the event of disagreement between the Chief Justice of India and the executive?

Held

• S P Gupta was overruled on this point. The Court held that in the matter of appointments the opinion of the Chief Justice of India has primacy, so that consultation is in substance concurrence, and the Government cannot appoint a person whom the Chief Justice has not recommended. The Chief Justice's opinion is not his personal view: it must be formed in consultation with his senior colleagues in the Court, so that the recommendation is institutional rather than individual. This was the birth of the collegium. The Court reasoned that the independence of the judiciary is a basic feature, that selection of Judges is integral to it, and that those best placed to assess judicial ability are Judges rather than Ministers. The executive retains a role: it may raise objections and place material before the collegium, and its views must be considered, but it cannot override the recommendation. The same primacy was held to attach to transfers under Art.222, and a transfer must be in the public interest and never punitive.

Ratio Decidendi

The provisions requiring consultation must be read in the light of the object they serve, which is to secure the appointment of the best available persons and to keep the judiciary independent of the executive. If consultation meant no more than an exchange of views which the executive could disregard, the safeguard would be formal only and the executive would in effect select the Judges who would sit in judgment on its own actions. Primacy in the judiciary is therefore an implication of independence, and the requirement of consultation among Judges guards against the concentration of that primacy in one person.