SUPREME COURT ADVOCATES ON RECORD ASSOCIATION

VS.
UNION OF INDIA

Equivalent Citation: AIR 1994 SC 868

Case No.: Writ Petition (civil) 1303 of 1987

Petitioner:

Supreme Court Advocates-on-Record Association and another

Respondent:

Union of India

Date of Judgement: 06/10/1993

Bench: Ratnavel Pandian, A.M. Ahmadi, Kuldip Singh, J.S. Verma, M.M. Punchhi,
Yogeshwar Dayal,

G.N. Ray, Dr. A.S. Anand, S.P. Bharucha

FACTS

The nine-Judge Bench not only overruled S.P. Gupta’s case, but also devised a specific
procedure for appointment of Judges of the Supreme Court in the interest of “protecting the
integrity and guarding the independence of the judiciary.” For the same reason, the primacy of
the Chief Justice of India was held to be essential.
 The bench held that the recommendation in that behalf should be made by the Chief Justice
of India in consultation with his two senior-most colleagues and that such recommendation
should normally be given effect to by the executive.

Thus, in 1993, the Chief Justice of India got primacy in appointing judges, and till this
time, it was the government’s job to fill vacancies in HCs and the SC.

The matters relating to the appointment of the judiciary have plagued and perplexed the
judicial mind ever since the inception of the constitution. This matter has to be resolved by the
interpretation of the constitutional provisions relating to the appointment of judiciary. The
omnipresent bogey haunting every pronouncement is the independence of the judiciary. A
delicate balance had to be struck between democratic control of an essentially undemocratic
institution and impartial arbitration.

The matter came up for adjudication in Sankal Chand vs. Union of India 1, where the
court upheld the transfer of the Chief Justice of Himachal Pradesh. However, by 1982, the
debate had reached epic proportions. These matters took solid form in a batch of writ petitions
questioning the move to transfer the judges challenging the affected transfer of some judges
and demanding the justifiability of judge strength2.

The Supreme Court, while disposing of the matter, vested the ultimate control with the
Central Government3. At this juncture, a bill was introduced in the parliament seeking to amend
the Constitution (67th Amendment) Bill 1990 seeking to amend articles 124(2), 217(1), 222(1)
and 231 (2) (a). This bill brought to empower the president to set up a judicial commission
known as National Judicial Commission. The avowed objective was to implement the
121st Law Commission Report. This report recommended that a judicial commission is set up
to oversee the appointment of the judiciary. However, nothing came of this as the bill lapsed
with the dissolution of the 9th Lok Sabha. The writ petitions seeking a review of SP Gupta case

1
Sankal Chand vs. Union of India 1978 (1) SCR 423
2
SP Gupta & others vs. UOI, AIR 1982 SC 149
3
As per Bhagwati, J. in SP Gupta case
were heard by a three judge bench, namely Chief Justice Ranganath Mishra and Justices MN
Venkatachaliah and MM Punchhi, which recommended reconsideration4.

ISSUES

There were broadly two issues in this case:

Whether the opinion of Chief Justice of India should be given primacy with regard to the
appointment and selection of Judges of High Courts and the Supreme Court, as well as in
the transfer of Judges from one High Court to other?

 Import of the Term ‘Consultation’

The first major issue was the import of the term “consultation” occurring in Art. 124. The
majority held that it indicates an integrated, participatory and consultative process. This entails
the full discharge of constitutional obligations on the part of constitutional functionaries.
Various approaches have been used by the judges to show that “consultation” means
occurrence or primacy notably among which are”

1. The Chief Justice of India as a ‘Pater Familias’ would be in the best position to
judge.
2. In contrast to other constitutions, the Indian constitution does not vest absolute
discretion in the hands of the executive. Hence, the Chief Justice of India cannot be
regarded as an inferior position.
3. The practice of appointments has become an inseparable part of the constitution
leading to the formation of a convention. This convention does not allow the making
of an appointment without the concurrence of the Chief Justice of India.

4
Subhash Sharma vs UOI JT 1990 (4) SC 245
 4. The central government being a litigant in a large number of cases before the court
cannot be a party to the appointment of judges.
5. All the judges have also given the maintenance of the independence of the judiciary
as a reason.

The initiation of the proposal must be made by the Chief Justice of India. In the case of a
High Court, the proposal must emanate from the Chief Justice of that concerned High Court.
The Chief Justice of India is expected to initiate any proposal for transfers. Further, a check
has been placed at the discretion of the Chief Justice of India, who is now bound to consult
with two of his senior-most colleagues. Thus the Chief Justice of India will effectively mean
this judicial troika. If a proposal for appointment is made by this judicial troika and is turned
down by the central government, there are two possibilities. These depend upon the
concurrence of the senior most colleagues. The other two judges are of the view that it must be
withdrawn, the recommendation will be withdrawn. However, if they are in concurrence with
the Chief Justice of India, the recommendation will be made again and it has to be accepted.

 The Criteria for Appointment

In relation to the appointment of the Chief Justice of India, the majority held
that seniority must be the prevailing criteria, provided of course the person in question is fit.
In relation to the appointment of judges to the Supreme Court, the seniority semi-quotes inter
se in the High Court as well as their combined seniority have to be given weightage. Further,
the legitimate expectations of the judges slated for elevation must be kept in mind.

 The Transfer of High Court Judges

o Consent of the transferee is irrelevant. However, the personal factors of
the transferee must be kept in mind by the Chief Justice of India while
affecting the transfer. This is in conformity with the decision rendered in
the SP Gupta case. The transfers affected must not be deemed to be
punitive.
o Justiciability of such transfers is not possible, except on the ground that
a transfer was not made on the recommendations of the Chief Justice of
India.
Whether these matters, as well as that of fixation of the number of Judges of each High
Court, is justiciable?

 Justiciability of Judge Strength

The fixation of judge strength is justiciable but, it must be shown that lack of
strength is leading to “slow justice”, (as it is mandated by article 21, that speedy justice in
courts is a fundamental right in respect of criminal trials) The opinion of the Chief Justice of
India and the Chief Justice of respective High Court must be taken into account.

Other Issues

 Appointment of the Less Privileged Class

Justice Ratnavel Pandian has devoted a substantial part of his judgement to throw
light the inadequate representation of certain classes. He has adduced statistics to show that
women, OBCs, SCs, STs have not been given adequate representation. He has, therefore,
placed an onus upon the government to forward the list of these classes, upon which the Chief
Justice of India shall decide.

RATIO DECIDENDI

In 1993, a nine-Judge Constitution Bench of the Supreme Court in Supreme Court

Advocates-on-Record Association Vs. Union of India (1993) by 7-2 majority overruled the
decision in SP Gupta’s Case (S.P. Gupta vs. Union of India), a late 1980’s case where a
Supreme Court Constitution Bench held that ‘consultation’ does not mean ‘concurrence’ and
ruled further that the concept of primacy of the Chief Justice of India is not really to be found
in the Constitution.
JUDGEMENT

Thus on the question of primacy the court concludes that the role of Chief Justice of India
in the matter of appointment of the Judges of the Supreme Court is unique, singular and primal,
but participatory vis-a-vis the executive on a level of togetherness and mutuality, and neither
he nor the executive can push through an appointment in derogation of the wishes of the other.

The 9 judge bench delivered the much awaited judgment on October 6, 1993. The
judgment was delivered with 7:2 majority overruled its earlier decision in S.P. Gupta and held
that in issues regarding the appointment of judges in higher judiciary the opinion of CJI must
be given primacy in order to minimize the executive influence in the Judicial functions. The
majority judgment was delivered by Justice Verma on behalf of Ray, Anand, Dayal &
Bharucjajj. while Kuldeep Singh and S.R. Pandian jj. delivered separate but concurring opinion
and Ahmadi & Punchhijj. giving the minority opinion.

The court overruling its decision of S.P. Gupta held that the largest importance must be
given to the recommendation of the Chief Justice of India formed after taking into
consideration the opinion of 2 senior most judges of the Supreme Court. Therefore, this
judgment saving the spirit of article 50 of the Constitution minimized the executive influence
in judicial appointments. Further, the judgment thereby reduced the political influence and
personal favoritism from the appointment procedure.

The court ruled that the appointment shall be made by giving primacy to the opinion of
Chief Justice of India and the executive branch of the government shall only play the role of
checks and balances on the judges’ exercise of power. Thus through this judgment the court
corrected the mistakes committed in the past by reducing executive influence in the
appointment process and the elimination of the political influence, biasness and favoritism. The
court also expanded the scope of the word “Consultation” by construing it in equivalent terms
with “Concurrence”.

The minority opinion by Ahmadi & Punchhi JJ. was that if as per majority’s view the
primacy is to be given to the CJI then as a result of this upper hand the role of other
constitutional functionaries discussed in the relevant provision of appointment procedure
would become minimal and close to negligible. This erosion of power will result in an injury
irreversible to the basic facet of Constitution i.e. Separation of Power. In their opinion if this
would be the case then there is way too much levy on the part of the Judiciary and this inequality
in the panel would often result in biasness, conflict and finally to chaos.

The majority along with delivering this landmark judgment also provided guidelines
which must be followed in future in the procedure of appointment of judges in higher judiciary.
The majority bench provided that in case there is a need of appointment of judge of apex court
the initiation of proposal has to be from CJI and in matters of High Court through CJ of the
respective High Court. The same way must be adopted for the transfer however, transfer of CJ
of HC must be on the initiation of CJI. Reiterating the ratio of the case the court held that no
appointment shall be made unless it is in conformity with the opinion of CJI. For the
appointment of CJI the senior most judge of the apex court must be appointed as the next CJI.

The guidelines framed by the court are as follows:

1. The CJI’s opinion must be given primacy but he must consult with his two senior-
most colleagues.
2. All the constitutional functionaries involved in the appointment process must
participate harmoniously.
3. Transfer of Judges cannot be challenged in the courts.

JUDGEMENT OBSERVATION:

The decision of this case is a very important and sound decision in the sense that the
majority overruled its earlier decision which gave the power of final word to the government.
The majority now gave up a much more liberal and flexible interpretation of the word
“Consultation” which earlier meant an opinion with no binding value. This position was
changed by the judgment as now “Consultation” was meant as “Concurrence” and therefore
granted it binding value. By the virtue of this decision the government cannot ignore the
opinion and recommendation of the Chief Justice of India thereby reducing executive
influence, political biasness, favoritism and influence. The decision upheld the validity of
Article 50 which demanded the state to minimize the executive influence from the judicial
works.

The majority bench shifting its stance on the matter considered that in matters of selection
of the best suitable candidate for the office the CJI has the most extensive and thorough
knowledge and that should be respected. The decision sought to strengthen the foundational
features and basic structure of the constitution. The court has further to balance the powers of
the panel had recommended that the process should be treated as one with mutual participation
by taking into consideration the opinion of each and every consultee and giving the greatest
weight to the CJI. In this way the powers of all the member participants would be balanced and
there would be no misuse of authority.

The law laid down in this decision is one of great importance and therefore must be
cherished. This decision minimized the political influence that the judiciary was suffering since
independence. It also checked the government’s practice to appoint a judge bypassing the
opinion of CJI.

However, in 2008 Justice Verma in a speech said that judicial appointments have taken
shape of judicial disappointment. In an interview he was asked ti further elucidate his point. To
this query he said that his opinion in this case was seriously misunderstood as well as misused.
He said that in his judgment he meant that the process should be one where each member
participates equally. What he meant was that the appointment process must be joint and
participatory which nowadays has become redundant and one sided therefore, a rethink is
required.5

Therefore, considering Justice Verma’s majority opinion in the judgment vis-à-vis his
opinion in 2008 there seems a flaw in the judgment which must be resolved to reduce the
friction between the constitutional authorities.

5
Venkatesan, V. ‘Honesty Matters’ (2008) 25(20) Frontline,
<http://www.frontline.in/static/html/fl2520/stories/20081010252003500.htm>
CONCLUSION

The judgement does not augur well for the future. There are many possible flash points.
This must be viewed as a part of a macro-trend, namely the splurge in ‘Judicial Legislation’.
The judiciary has not placed checks upon it and has suffered in consequence, the decision in
Unnikrishnan case and its aftermath is a prime example.

The judgement is flawed ab initio. A large part of the majority judgement is in danger of
being rendered otiose. As MM Punchhi, J. has pointed out, a large part of the majority decision
is obiter, as it was not based on the reference. The court has answered questions it was not
asked. The reference only contained the question of ‘primacy’ and fixation of judge strength.
Hence, the rest of the judgement is obiter.

Further, this judgement virtually re-writes the constitution. The word ‘consultation’ can
never mean ‘concurrence’. This may be an attempt to implement the 121st Law Commission
recommendation which never got off the ground. Hence, it is not the duty of the legislature to
do the work of the legislature.

Furthermore, the majority in the instant case have attempted to create a collegium in the
form of the judicial troika. This constitutionally is not tenable. The “Chief Justice of India”
cannot mean the Chief Justice and his two colleagues. If this is accepted in all cases, where the
Chief Justice of India is consulted, he must consult the other two. This may cause great conflict
in the future. The constitution of India has given a different position to the CJI. He has the
‘primus inter pares’ position in the judiciary. He is the administrative head.

Aftermath of 2nd Judges Case

The same question was again brought into question in re Presidential Reference 6where
again a nine – judges bench affirmed the decision laid down in 2nd judges case and further
added that sole opinion of CJI is not maintainable and he must consult with a collegium of four
senior-most judges of Supreme Court. The court increased the number of judges with who CJI

6
In re: Presidential Reference, A.I.R. 1999 S.C. 1.
must consult before arriving at a conclusion. Such decision can only be challenged on the
ground that the guidelines framed by the 1993 & 1999 judgment have not been followed.

Then in 2014 the newly elected BJP Government brought 99th Constitutional
(Amendment) Act, 2014 amending the Articles 124(2), 127 & 128 and also inserted Article
124 A,B &C. The combined effect of this amendment was the establishment of National
Judicial Appointment Commission who would have the sole power in matters of appointment
of judges in higher judiciary. The commission was made up of the following members

1. CJI (Chairperson ex-officio)

2. 2 senior-most judges of the supreme court (ex-officio members)
3. The Union Minister of Law & Justice
4. Two eminent personality (nominated by a committee consisting of PM, CJI &LoP )

This 99th constitutional amendment was further challenged before a five judge (Kehar,
Lokur, Goel, Joseph & Chelameshwar) bench in Supreme Court Advocate-on-Record
Association v. Union of India7 on the grounds that the said amendment is violative of
Independence of Judiciary which is a basic feature of Constitution. Therefore, the majority
bench stuck down the 99th Constitutional Amendment as it was violative of Basic Structure.
However, Justice Chelameshwar dissented with the majority and upheld the validity of the
impugned amendment.

7
Supreme Court Advocate-on-Record Association v. Union of India, (2015) A.I.R. S.C.W. 5457.