Name of Judgment – Supreme Court Advocates-on-Record Association and another v Union of India

Court Name – Supreme Court of India

Date of Judgment- 06 October 1993

Citation – AIR 1994 SC 868

Bench Name- 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 OF THE CASE

This case deals with the interpretation of the word “consultation”. The Supreme Court of India dealt with this in the case of Union of India v. Sakalchand Seth and defined the scope of the word “consultation”. The court held that for an effective consultation, all the constitutional functionaries must have full and identical facts to be able to take decisions. The court empowered the president to be able to differ from the Chief Justice of India (CJI) and make a different decision. The judgment was that the word “consultation” does not necessarily mean “concurrence”. The effect of this judgment was that judiciary gave the executive an upper hand in appointing judges to insure the independence of judiciary. This court decision was reaffirmed in in the case of S.P. Gupta v. Union of India, which emphasised the independence of judiciary in India. These two judgments were bound to have an adverse impact on the impartiality and independence of Judiciary that is often the last hope of the citizens in this democratic nation of India. The effect of these decisions was that the appointment of judges will be the duty of the executive sphere of government. This resulted in political influence and favouritism in the appointment process of the judiciary. The entire system of justice delivery system was vitiated with these judgments.

The case of Supreme Court Advocates-on-Record Association and another v Union of India was filed as for such as a writ in the apex court for filling up the vacancies in the higher judiciary. This writ petition brought into review the controversial judgment of S.P. Gupta v. Union of India.

ISSUE

To determine the scope of the word “consultation” as in Article 124(2) of Constitution of India.

ARGUMENTS BY BOTH SIDES

PETITIONERS

In terms of Article 50 of the Constitution, the executive must be separate from the functioning of judiciary as much as possible. Therefore, such upper hand in appointment procedure vested in the executive is a clear violation of Article 50. The interference of executive in judiciary appointment must be minimised and CJI recommendation shall not be ignored. This power of defiance with the President has made the CJI a passive body instead of being an active participant in the appointment procedure. This passive and uninvolved status of CJI has proved to be counter-productive to the independence of judiciary. The basic feature of independence of judiciary is strangulated in the clutches of this executive superiority and this will result in erosion of a free and fair administration of justice. Therefore, to save the basic feature of independence of judiciary the court through its decision must construe the word “consultation” as equivalent to “concurrence”.

RESPONDENTS

In terms of Articles 124 & 214 of the Constitution, the president being the executive head of the nation, he is given power by the Constitution to appoint judges in Supreme Court and High Court based on the advice of the Cabinet Ministers. The CJI is a mere consulter in the process, the executive has a greater authority to act. The executive differing from the views of CJI is no impairment of Independence of Judiciary. The Constitution itself has granted greater autonomy to the President in the appointing process. The only role of CJI is that he has to make the President aware of the facts unknown to him regarding the considered candidate. The CJI’s role ends at this stage and then it is upon the President to finally appoint whoever he deems fit to hold the office.

The respondents submit that the independence of judiciary is not violated. The power to appoint the respective judges has been given by the Constitution to the President and during appointment the judge owes his faith & allegiance to the constitution and not to the appointing authority. The tenure of the office of these judges are fixed by the Constitution and no branch either Parliament or Executive has the competence to remove the judge from his office except in case of impeachment. The perks, allowances and salary of these judges are fixed by the Constitution and the Parliament cannot even by a unanimous bill reduce the quantum of such salary, perks & allowances. The conduct of a judge of SC or HC can never be discussed in a session of Parliament due to the privileges granted by the Constitution. Both higher judicial courts are Courts of Record, they have the power to punish the ones who disrespect their decision. Both the higher judicial courts are given the power to decide the constitutionality of actions of the governments of the state as well as union government.

Therefore, by virtue of these Constitutional provisions the Parliament or Executive can neither impair Independence of Judiciary which is basic structure of Constitution nor can they make an amendment in these constitutional provisions since they constitute to be components of Independence of Judiciary.

JUDGMENT

The 9-judge bench, the judgment was delivered with 7 to 2 majority which overruled its earlier decision in S.P. Gupta v. Union of India case 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 and Bharucjajj. while Kuldeep Singh and S.R. Pandian delivered separate but concurring opinion and Ahmadi & Punchhijj. gave the minority opinion.

The court overruling its decision of S.P. Gupta v. Union of India case and held that the largest importance must be given to the recommendation of the CJI 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 favouritism from the appointment procedure.

The court ruled that the appointment shall be made by giving primacy to the opinion of CJI 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 favouritism. 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 as of the 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 must 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 court gave guidelines as to that the CJI’s opinion must be given primacy but he must consult with his two senior-most colleagues; all the constitutional functionaries involved in the appointment process must participate harmoniously; and transfer of Judges cannot be challenged in the courts.

EFFECT OF THE JUDGEMENT

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, favouritism 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.

CASE COMMENT

The overall effect of the decision was great as in history quite a many times government to influence a decision played with the appointments as they were playing a game of Chess. The decision finally stored the power of appointment in the hands of CJI to minimize and control the executive influence in judicial appointments. Therefore, due to this decision to a great extent the political influence, biasness and favouritism was reduced in judicial matters which boosted the foundational and basic structure of constitution. However, this system is non-transparent since it does not involve any other branch of government. Favouritisms can still occur as there is no public knowledge of how the CJI will make its decisions. Taking in regard his opinion there is surely a need to rethink the matter and to come up with a stringent solution.