SC Advocates-on-Record Association v. Union of India, (1993) 4 SCC 441

This case is also known as the Second Judges Case, as it reviewed and overruled the decision in S.P. Gupta v. Union of India (1981), leading to the establishment of the collegium system for judicial appointments.

Bench
A 9-Judge Constitution Bench of the Supreme Court:

• Justice M.N. Venkatachaliah
• Justice A.M. Ahmadi
• Justice K. Jayachandra Reddy
• Justice S. Ratnavel Pandian
• Justice P.B. Sawant
• Justice Kuldip Singh
• Justice J.S. Verma
• Justice Yogeshwar Dayal
• Justice G.N. Ray

Facts

• The case arose from concerns over executive dominance in judicial appointments and transfers, particularly after the ruling in S.P. Gupta v. Union of India (1981), which had upheld the primacy of the executive.
• The petition was filed by the SC Advocates-on-Record Association, challenging the executive’s role in judicial appointments and transfers and seeking a reconsideration of the 1981 ruling.
• The petitioners argued that judicial independence was being undermined by the executive’s power to reject or delay judicial appointments.
• The case centered on the interpretation of the word “consultation” in Articles 124 and 217 of the Constitution, which govern the appointment of Supreme Court and High Court judges.
• The primary question was whether the President (executive) had the final say in judicial appointments, or if the opinion of the Chief Justice of India (CJI) should be binding.

Issues

• Whether the CJI’s opinion in judicial appointments was binding on the President, or if the executive had the final authority.
• Whether the process of judicial transfers under Article 222 required the consent of the concerned judge.
• Whether the 1981 judgment in S.P. Gupta v. Union of India was correctly decided.
• Whether the system of judicial appointments ensured judicial independence, a fundamental feature of the Constitution.

Ratio Decidendi

The Supreme Court laid down the following key legal principles:

• Primacy of the Judiciary in Appointments: The Court overruled S.P. Gupta v. Union of India (1981) and held that in judicial appointments, the Chief Justice of India’s opinion must be given primacy.
• Collegium System Introduced: The Court established the collegium system, stating that judicial appointments must be made through a collective decision of the CJI and senior judges of the Supreme Court, rather than the executive alone.
• Meaning of “Consultation”: The word “consultation” in Articles 124 and 217 was interpreted to mean that the executive must act in concurrence with the judiciary. If the executive rejected a recommendation, it had to provide strong reasons, and the judiciary could reconsider the issue.
• Judicial Transfers: The Court ruled that transfers of High Court judges could be made without their consent, but they had to be done in public interest and not as a punishment.

Observations

• The Court emphasized that judicial independence is a basic structure of the Constitution and must be protected from executive interference.
• The ruling significantly weakened the executive’s role in judicial appointments, ensuring that the judiciary retained control over its own composition.
• The judgment laid the foundation for subsequent clarifications on the collegium system in the Third Judges Case (1998).

Decision

• The executive was stripped of its primacy in judicial appointments, and the judiciary was given a decisive role.
• The collegium system was established, requiring consultation among the CJI and senior judges before recommending judicial appointments.
• The executive retained the power to send back recommendations for reconsideration, but it could not override the judiciary’s decision.
• The transfer of judges without their consent was upheld, but safeguards were put in place to prevent misuse.

Important Terms

1. Article 124 (Appointment of Supreme Court Judges) – The President appoints Supreme Court judges in consultation with the CJI and other senior judges.
2. Article 217 (Appointment of High Court Judges) – High Court judges are appointed by the President after consultation with the CJI, the Governor of the State, and the Chief Justice of the High Court.
3. Article 222 (Transfer of High Court Judges) – The President can transfer a High Court judge after consulting the CJI.
4. Collegium System – A mechanism where judges themselves recommend judicial appointments and transfers, reducing executive interference.
5. Judicial Independence – The concept that the judiciary should function without external influence, especially from the executive or legislature.
6. Basic Structure Doctrine – A constitutional principle stating that certain fundamental aspects of the Constitution (such as judicial independence) cannot be altered by amendments.
7. Consultation vs. Concurrence – The Court clarified that “consultation” with the judiciary in appointments means that the executive cannot override the judiciary’s opinion without strong, recorded reasons.

Significance of the Case

• This case established the collegium system, which remains the framework for judicial appointments in India.
• It strengthened the judiciary’s independence, ensuring that executive interference was minimized.
• The judgment was further clarified in In re Special Reference No. 1 of 1998 (Third Judges Case), which expanded the collegium to include the CJI and four senior-most judges.
• The collegium system has been criticized for lack of transparency, but it remains in place despite attempts to replace it, such as the National Judicial Appointments Commission (NJAC), which was struck down in 2015.