Supreme court advocates-on-record association and others v. Union of India

INTRODUCTION

Supreme Court Advocates on Record Association and Others v. Union of India[1], also called the second Judge’s case was adjudged by a nine judge bench of the Hon’ble Supreme Court and the decision was given on 6th October 1993. This landmark judgement based on independence of Judiciary as a part of basic structure of the Constitution, along with the third Judge’s case firmly established the collegium system in India for the nomination of Judges to the Supreme Court and High Court. Though widely criticised by several jurists, this judgement held good for over two decades till 2014 when the National Judicial Appointments Commission Act was passed. Owing to this judgement the Chief Justice of India[2] enjoyed primacy over the Executive in matters of nomination of Judges of the Supreme Court and High Courts as well as matters of transfer of Judges and Chief Justices of High Courts.

STATEMENT OF FACTS

In the S.P.Gupta v. Union of India and Anr[3], by a 4:3 majority it was held that the CJI does not enjoy primacy over the Legislature or Executive in matters of appointment or transfer of Judges/Chief Justices of High Court and Supreme Court. It was also held that the fixation of strength of Judges of each High Court is justiciable and hence can be scrutinised by judicial review. However this judgement was not well received with sceptics apprehending a complete politicization of the judicial process.[4] At this juncture the Constitution (sixty seventh) Amendment Bill, 1990 was introduced to amend a few selected provisions of the Constitution namely Article 124(2), 217(1)[5], however the bill failed as the ninth Lok Sabha dissolved in that very year. After this in Subhash Sharma v. Union of India[6], the dictum of Guta’s case was upheld. This set the stage for a scrutiny of the previous judgement as it could not be digested by noted jurists and hence this nine-member bench was established to adjudge the case at hand.

ISSUES RAISED

There were broad two issues that were dealt with in this case. They are:

1. Whether the opinion of the CJI should be given primacy in regard to the appointment of Judges to the Supreme Court and the High Courts, and in regard to the transfer of Judges of High Courts or Chief Justices of High Courts?

2. Whether these matters as well as that of fixation of the number of Judges of each High Court is justiciable?

ARGUMENTS ON BEHALF OF PETITIONER

Several eminent counsels namely F.S.Nariman, Kapil Sibal, Ram Jethmalani, P.P.Rao and Shanti Bhushan extended their able assistance to further the proceedings in this case. One of the main contention was the judgement in the S.P.Gupta’s case should be reconsidered and that the opinion of the CJI should be weighed above and over that of the Executive. The role of the Executive is only to appoint the Judges on the referral of the CJI. They had also contended that the matter of fixation of strength of Judges under Article 216

ARGUMENTS ON BEHALF OF RESPONDENT

Shri K.Parasaran argued in favour of the judgement in Gupta’s case. He contended that in spite of the judgement in the previous case, the CJI enjoys primacy in most of the cases of appointments and if further rights are extended then it will lead to arbitrariness. It had also been contended that in the Constitutional Assembly Debates, the question of giving primacy to the CJI with respect to appointment and transfer of Judges had been widely discussed, but had been blatantly discarded. Hence adding this provision will be like re-writing the Constitution. It was contented that the intention of the Constitution framers should be given importance and that the respondents “were making a futile attempt to undo and unsettle the well-reasoned principles enunciated in the Gupta’s case”

RATIO DECIDENDI

The bench overruled its earlier judgement in the S.P.Gupta v. Union of India and held that the CJI should be given primacy in matters of appointment of Judges of the Supreme Court and the High Courts as well as transfer of Judges and Chief Justices of the High Courts. It was also held that this process is not justiciable and that the CJI is not answerable for his/her acts.

JUDGEMENT

Thus on the question of primacy the court concluded that the role of the CJI in the matter of appointment to the Judges of the Supreme Court is “unique, singular and primal, but participatory vis-à-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”

CONCLUSION

Thus we see that this case over-rules the Gupta’s case which was adjudged by a seven judge bench of the Supreme Court. The Court has emphasised that the primary aim must be to reach an agreed decision taking into account the views of all the consultees, giving the greatest weight to the opinion of the Chief Justice of India.Presidential Reference(In Re) v. Na[13]


[1]

[2]

[3]

[4]Special Reference Regarding Appointment of Judges: An Exercise in Futility, Student Advocate, Manupatra, Vol. 11, Pg. 139, (1999). 

[5]

[6]

[7]Supra Note 5.

[8]Supreme Court Advocates-On-Record Association and Others v. Union of India, Para 168.

[9]Id.

[10]Supreme Court Advocates-On-Record Association and Others v. Union of India, Para 171.

[11]Supreme Court Advocates-On-Record Association and Others v. Union of India, Para 668.

[12]

[13]

[14] Shubhankar Dam, Collegium 2.0: How Should India Appoint its Judges, Quartz India, (Nov 3rd 2015).

 

Arijeet Nandi 
on 01 April 2016
Published in Constitutional Law
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