The second judge’s case:

The First judge’s case was overruled by a nine judge bench in the Second judge’s case. The correctness of the First judges case was doubted by a three judges Bench in subash Sharma Vs.U.O.I., doubts were expressed about the correctness of the interpretation of the word “ consultation” in regard to the appointment of judges in S.P.Gupta Vs. U.O.I., popularly known as First judges case.

In the supreme Court Advocate on Record Association Vs Union of India popularly referred to as Second judges case the petitioners alleged that the Executive had failed to properly discharge its duty to fill judicial appointments in the high Courts in a timely manner , and failed to select the most qualified judges. The chief justice of India constituted a nine judges Bench to examine two questions. Firstly , whether the opinion of the Chief justice of India in regard to the appointment of Judges to the supreme court and to High Courts as well as transfer of Chief Justice and judges of High Courts was entitled to primacy ? And secondly, whether the fixation of the judge-strength in High Courts was Justifiable? By a majority of 7:2, a nine judge’s bench of this Court , in the Second judge’s case, overruled the judgment in the First Judges case. The judgment was rendered on 6.10.1993.

The conclusion drawn by the majority view were as under :

”(1) The process of appointment of judges to the supreme court and the High Court’s is an integrated ‘participatory consultative process’ for selecting the best and most suitable persons available for appointment; and all constitutional functionaries must perform this duty collectively with a view primarily to reach an agreed decision, sub serving the constitutional purpose, so that the occasion of primacy does not arise.

(2) Initiation of the proposal for appointment in the case of the supreme Court must be by the Chief justice of India, and in the case of a High Court by the chief justice of that High Court, and for transfer of a judge/ Chief Justice of a High Court, the proposal has to be initiated by the Chief justice of India. This is the manner in which proposal for appointment to the Supreme Court and the High Court’s as well as for the transfers of judges/chief justice of High Court must invariably be made.

(3) In the event of conflicting opinions by the constitutional functionaries, the opinion of the judiciary symbolized by the view of the chief justice of India’ and formed in the manner indicated has primacy.

(4) No appointment of any judge to the Supreme Court or any High Court can be made unless It is in conformity with the opinion of the Chief Justice of India.

(5) In exceptional cases alone, for sated strong cogent reasons , disclosed to the chief justice of India , indicating that the recommended is not suitable for appointment, that appointment recommended by the by the Chief justice of India may not be made. However, if the stated reasons are not accepted by the chief justice of India and the other judges of the supreme court who have been consulted in the matter, on reiteration of the recommendation by the chief justice of India, the appointment should be made as a healthy convention.

(6) Appointment to the office of the chief justice of India should be of the senior most judge of the Supreme Court considered fit to hold the office.

(7) The opinion of the chief justice of India has not mere primacy, but is determinative in the matter of transfer of High court judges/chief justices.

(8 ) consent of the transferred judge/chief justice is not required for either the first or any subsequent transfer from one High Court to another.

(9) Any transfer made on the recommendation of the chief justice of India is not to be deemed to be punitive, and such transfer is not justiciable on any ground.

(10) In making all appointments and transfers, the norms indicated must be followed .However; the same do not confer any justiciable right in anyone.

(11) Only limited judicial review on the ground specified earlier is available in matters of appointments and transfers.

(12) The initial appointment of judge can be made to a High court other than that for which the proposal was initiated.

(13) Fixation of judge ‘strength in the High Court is justifiable, but only to the extent and in the manner indicated.

(14) The majority opinion in S.P. Gupta vs. Union of India (1982) 2 SCR365: AIR 1982 SC 149, insofar as it takes the contrary view relating to primacy of the role of the Chief Justice of India in matters of appointments and transfers, and the justifiability of these matters as well as in relation to Judges strength does not commend itself to us as being the correct view. The relevant provisions of the Constitution including the constitutional scheme must now be construed, understood and implemented in the manner indicated herein by us.

Consequent upon doubts having arisen with the Union of India about the interpretation of the Second Judges’ case the President of India, in exercise of his power under Article 143, referred nine questions to the Supreme Court, for its opinion. A nine Judges Bench answered the reference unanimously, on 28.10.1998.

In the Third judge’s case, it was held:

“ 1. The expression” consultation with the Chief Justice of India” in Article 217(1) of the Constitution of India requires consultation with a plurality of judges in the formation of the opinion of the Chief Justice of India does not constitute “consultation” within the meaning of the said Articles.

2. The transfer of puisne judges is judicially reviewable only to this extent that the recommendation that has been made by the Chief Justice of India in this behalf has not been made in consultation with the four senior most puisne Judges of the Supreme Court and/or that the views of the Chief Justice of the High Court from which the transfer is to be effected and of the Chief Justice of the High Court to which the transfer is to be effected have not been obtained.

3. The Chief Justice of India must make a recommendation to appoint a Judge of the Supreme Court and to transfer a Chief Justice or puisne judge of a High Court in consultation with the four senior most puisne judges of the Supreme Court. Insofar as an appointment to the High Court is concerned, the recommendation must be made in consultation with two senior most puisne Judges of the Supreme Court.

4. The Chief Justice of India is not entitled to act solely in hi individual capacity, without consultation with other judges of the Supreme Court, in respect of materials and information conveyed by the Government of India for non-appointment of a judge recommended for appointment.

5. The requirement of consultation by the Chief Justice of India with his colleagues who are likely to be conversant with the affairs of the concerned High Court does not refer only to those judges who have that High Court as a parent High Court. It does not exclude judges who have occupied the office of a Judge or Chief Justice of that High Court on Transfer.

6. “ Strong cogent reasons” do not have to be recorded as justification for a departure from the order of seniority, in respect of each senior Judge who has been passed over. What has to be recorded is the positive reason for the recommendation.

7. The views of the judges consulted should be in writing and should be conveyed to the Government of India by the Chief Justice of India along with his views to the extent set out in the body of this opinion.

8. The Chief Justice of India is obliged to comply with the norms and the requirement of the consultation process, as aforestated, in making his recommendations to the Government of India.

9. Recommendations made by the Chief Justice of India without complying with the norms and requirements of the consultation process, as aforestated, are not binding upon the Government of India.