- Justice J.S. VermaFavored (Majority - Lead Opinion)
- Justice Yogeshwar DayalFavored (Majority)
- Justice G.N. RayFavored (Majority)
- Justice A.S. AnandFavored (Majority)
- Justice S.P. BharuchaFavored (Majority)
- Justice S. Ratnavel PandianFavored (Concurring)
- Justice Kuldip SinghFavored (Concurring)
- Justice A.M. AhmadiOpposed (Dissent)
- Justice M.M. PunchhiOpposed (Dissent)
- Constitution of India (Articles 124(2) - SC Appointments, 217(1) - HC Appointments, 222 - Transfer of HC Judges, 50 - Separation of Judiciary from Executive)
- S.P. Gupta v. Union of India (1981) (Overruled on primacy)
- Union of India v. Sankalchand Himatlal Sheth (1977)
Popularly known as the Second Judges Case, this landmark Public Interest Litigation directly sought a reconsideration of the majority view in S.P. Gupta v. Union of India (First Judges Case), which had held that the executive had primacy over the judiciary in the appointment and transfer of judges. The petitioners argued that the S.P. Gupta ruling had detrimentally affected judicial independence.
The core issue before the 9-judge bench was the interpretation of the word "consultation" in Articles 124(2) and 217(1) concerning appointments to the higher judiciary. Did it imply mere seeking of opinion (as held in S.P. Gupta), or did it require concurrence or give primacy to the opinion of the Chief Justice of India (CJI)? The case aimed to establish a framework that best preserved judicial independence, considered a basic feature of the Constitution.
ARGUMENTS
Petitioners' Case (SCAORA & Others)
- The decision in S.P. Gupta giving primacy to the executive was erroneous and harmed judicial independence (a basic feature).
- "Consultation" with the CJI, in the context of judicial appointments, must mean more than just seeking an opinion; it should imply concurrence or at least give primacy to the CJI's view to safeguard the judiciary from executive influence.
- The CJI's opinion should be formed institutionally, involving senior judges, to ensure objectivity and represent the judiciary's collective wisdom.
- Judicial independence requires that the judiciary, not the executive, has the final say in appointments and transfers of judges.
Respondent's Case (Union of India)
- The interpretation of "consultation" in S.P. Gupta was correct based on the plain meaning of the word and the constitutional text.
- Giving primacy or requiring concurrence of the CJI would amount to rewriting the Constitution, which is beyond the Court's power.
- Executive accountability requires that the government, responsible to Parliament, has the final say in appointments made by the President.
- The existing consultative process adequately protects judicial independence; giving the judiciary primacy would create an unaccountable system.
Case Progression Timeline
S.P. Gupta Judgment (First Judges Case)
SC holds (majority) that executive has primacy in judicial appointments; "consultation" does not mean concurrence.
December 30, 1981Period of Executive Primacy
Appointments and transfers largely reflect the executive's view, leading to concerns within the judiciary and bar about independence.
1982 - Early 1990sPILs Filed
SCAORA and other lawyers file PILs seeking reconsideration of the S.P. Gupta judgment.
~Early 1990sHearing by 9-Judge Bench
A large bench is constituted to re-examine the interpretation of "consultation" and the balance between executive and judiciary.
1992-1993Judgment Delivered (Second Judges Case)
By a 7:2 majority, SC overrules S.P. Gupta on primacy, holds "consultation" implies concurrence, and establishes the Collegium system.
October 6, 1993Third Judges Case (Re: Presidential Reference)
SC clarifies and expands the Collegium's composition and functioning (CJI + 4 senior-most judges for SC appointments).
1998In a landmark 7:2 majority decision, the Supreme Court overruled its earlier judgment in S.P. Gupta regarding the primacy in judicial appointments. The Court held that judicial independence, being a basic feature of the Constitution, required primacy of the judiciary's opinion in appointments and transfers.
The majority re-interpreted "consultation" under Articles 124(2) and 217(1) to mean concurrence. It established the Collegium system, ruling that the opinion of the Chief Justice of India, formed after consulting the two senior-most Supreme Court judges (later expanded in the Third Judges Case), would have primacy. The executive could object to a recommendation, but if the Collegium reiterated it, the appointment was binding. Similar principles were laid down for High Court appointments (involving consultation with HC collegium) and transfers.
COURT'S ANALYSIS
Justice J.S. Verma, writing the leading majority opinion, emphasized that judicial independence, essential for upholding the rule of law and constitutionalism, necessitated insulating appointments from executive dominance. The Court reasoned that the judiciary itself was best equipped to assess the suitability and merit of candidates for judgeship. By interpreting "consultation" dynamically and purposively in the context of safeguarding judicial independence (Article 50), the majority shifted the balance of power decisively towards the judiciary. The creation of the Collegium aimed to make the CJI's recommendation an institutional opinion, not just a personal one. The dissenting judges (Ahmadi and Punchhi JJ.) strongly argued that this interpretation amounted to rewriting the Constitution, lacked textual basis, and created an opaque system without adequate checks and balances.
FINAL VERDICT
- The majority view in S.P. Gupta v. Union of India regarding executive primacy in judicial appointments was overruled.
- The opinion of the Chief Justice of India, formed through the collegium process, has primacy in judicial appointments and transfers.
- "Consultation" with the Chief Justice of India under Articles 124(2) and 217(1) requires concurrence.
- The Collegium system was established, requiring the CJI to consult senior-most judges (initially two for SC appointments) to form an institutional opinion.
- Recommendations reiterated by the Collegium after executive objection are binding.
- Detailed guidelines were laid down for appointments and transfers to SC and HCs.
RATIO DECIDENDI
Judicial independence is a basic feature of the Constitution. To secure this independence, the primacy in the matter of appointments of judges to the Supreme Court and High Courts must rest with the judiciary. The term "consultation" under Articles 124(2) and 217(1) requires concurrence from the Chief Justice of India, whose opinion must be formed collectively with senior judges (the Collegium), representing the institutional view of the judiciary.
(Note: The Collegium system established here was further elaborated in the Third Judges Case (1998). An attempt to replace it with the National Judicial Appointments Commission (NJAC) via the 99th Amendment was struck down by the Supreme Court in the Fourth Judges Case (SCAORA v. UOI, 2015), reaffirming the Collegium's primacy based on the Basic Structure doctrine.)