In re Special Reference No. 1 of 1998 — the Third Judges case

It is the case that built the collegium as it now operates. The Second Judges case had established the primacy of the judiciary in appointments; this reference settled the mechanics — who is consulted, how many, in what form, and what happens when they disagree. Every subsequent controversy about judicial appointments is a controversy about the norms laid down here.

Under Art. 143, the President may refer to the Supreme Court for its opinion questions of law or fact which have arisen or are likely to arise and which are of such a nature and such public importance that it is expedient to obtain the opinion.

On 23 July 1998, President K. R. Narayanan made a reference in these terms: that the Supreme Court had laid down principles and prescribed procedural norms in regard to the appointment of Judges of the Supreme Court under Art. 124(2), of Chief Justices and Judges of the High Courts under Art. 217(1), and the transfer of Judges under Art. 222(1), in Supreme Court Advocates-on-Record Association v Union of India; that doubts had arisen about the interpretation of the law so laid down; and that it was in the public interest that those doubts be resolved.

1. Whether the expression consultation with the Chief Justice of India in Arts. 217(1) and 222(1) requires consultation with a plurality of Judges in the formation of the Chief Justice's opinion, or whether the sole individual opinion of the Chief Justice constitutes consultation.
2. Whether the transfer of Judges is judicially reviewable, in the light of the observation that such transfer is not justiciable on any ground and the further observation that limited judicial review is available — and what the extent and scope of that review is.
3. Whether Art. 124(2) as interpreted requires the Chief Justice to consult only the two senior-most Judges, or whether there should be wider consultation according to past practice.
4. Whether the Chief Justice is entitled to act solely in his individual capacity, without consulting other Judges of the Supreme Court, in respect of all materials and information conveyed by the Government for non-appointment of a Judge recommended.
5. Whether the requirement of consultation with colleagues conversant with the affairs of the High Court concerned refers only to Judges whose parent High Court it is, excluding Judges who served there on transfer.
6. Whether the strong cogent reason required to justify a departure from seniority must be recorded in respect of each senior Judge who is overlooked.
7. Whether the Government is entitled to require that the opinions of the other consulted Judges be in writing and transmitted to it by the Chief Justice with his own views.
8. Whether the Chief Justice is obliged to comply with the norms and the requirements of the consultation process in making his recommendation.
9. Whether recommendations made without complying with the norms and consultation process are binding on the Government.

The Court restated the constitutional theory before answering. The opinion of the judiciary, symbolised by the view of the Chief Justice of India, is to be obtained by consultation with the Chief Justice, and it is this opinion which has primacy. The reference to the office of the Chief Justice in the constitutional provisions is the indication of the modality by which that primacy is given effect in a pragmatic manner.

The reason given for structuring the power that way is worth reproducing. The rule of law envisages the area of discretion to be the minimum, requiring only the application of known principles or guidelines to ensure non-arbitrariness; but to that limited extent discretion is a pragmatic need. Conferring discretion on high functionaries and, wherever feasible, introducing the element of plurality by requiring a collective decision, are further checks against arbitrariness. So: entrusting appointments to high constitutional functionaries; attaching the greatest significance to the view of the Chief Justice, who is best equipped to assess the worth of candidates; making that view a collective opinion formed after taking into account the views of colleagues; and permitting the executive to prevent an appointment considered unsuitable for strong reasons disclosed to the Chief Justice — together provide the best method of achieving the constitutional purpose without conferring absolute discretion or a veto on either the judiciary or the executive, much less on any individual, be he the Chief Justice of India or the Prime Minister.

The Court also explained why the Constitution contains no detailed rules: the absence of specific guidelines appears deliberate, since the power is vested in high constitutional functionaries who were expected to develop the requisite norms by convention in actual working, as envisaged in the concluding speech of the President of the Constituent Assembly.

For appointments to the Supreme Court

• The Chief Justice's opinion is to be formed taking into account the views of the two senior-most Judges of the Supreme Court, and he is also expected to ascertain the views of the senior-most Judge whose opinion is likely to be significant — for instance because he comes from the same High Court as the candidate.
• Art. 124(2) is itself the indication that ascertainment of the views of some other Judges is requisite; the object of the Article is achieved by consultation, and this is the basis of the existing convention. It ensures that the Chief Justice's opinion is not merely his individual opinion but an opinion formed collectively by a body of men at the apex level in the judiciary.
• The collegium was enlarged. Previously it had consisted of the Chief Justice and the two senior-most puisne Judges. The Court held it desirable that the collegium consist of the Chief Justice of India and the four senior-most puisne Judges. It explained why it was not practicable to include the senior-most Judge from every High Court concerned: the composition cannot vary depending on where a prospective appointee comes from; and having taken part in one selection it would be neither proper nor desirable to leave a Judge out of the next.
• The opinion of all members of the collegium must be obtained in respect of each recommendation, and, at the invitation of the Chief Justice or another member, further views may be elicited.
• The Chief Justice cannot recommend against the collegium. If the Chief Justice is in a minority and the majority of the collegium disfavours the appointment, that person shall not be appointed.

For appointments to the High Courts

• The Chief Justice of the High Court must consult his two senior-most puisne Judges before recommending a name.
• The Chief Justice of India forms his opinion in the same manner as for a Supreme Court appointment, that is, in consultation with his senior-most puisne Judges — a collegium of himself and two.
• They take into account the opinion of the Chief Justice of the High Court, which is entitled to the greatest weight; the views of other Judges of that High Court who may have been consulted; and the views of colleagues on the Supreme Court Bench conversant with the affairs of the High Court concerned.
• Question 5 answered: that last category includes Judges of the Supreme Court who were puisne Judges or Chief Justices of that High Court, and it is of no consequence that it is not their parent High Court and they were transferred there. The objective is reliable information about the proposed appointee, so whoever is in a position to give it should be asked.

Form and record

• The ascertainment of opinions and their expression must be in writing to avoid any ambiguity, and all views must be conveyed to the Government of India along with the recommendation.

Primacy and its limits

• Question 9 answered in substance: the opinion of the Chief Justice of India for Arts. 124(2) and 217(1), formed in the manner indicated, has primacy in the matter of all appointments; no appointment can be made unless it is in conformity with that final opinion.
• But a distinction must be borne in mind between making an appointment in conformity with the Chief Justice's opinion and not making an appointment he has recommended. Even though no appointment can be made otherwise than in conformity with his opinion, in an exceptional case, where the facts justify, a recommendee may not be appointed on the basis of positive material on record placed before the Chief Justice. Primacy is in making an appointment; when the appointment is not made, the question of primacy does not arise. In the area of a candidate's antecedents and personal character, consultees other than the Chief Justice may be better placed to know, and their opinion is entitled to due weight.

Seniority and legitimate expectation

• On the phrase legitimate expectation, the Court made clear that no disparagement of High Court Judges was meant; all that was intended was that it is natural that senior High Court Judges should entertain hopes of elevation to the Supreme Court, and that the Chief Justice and the collegium should bear this in mind.
• A departure from seniority requires a strong cogent reason. But the Court cautioned against recording adverse comment lightly: a Judge overlooked on one occasion may find favour on another, and only where, for very strong reasons, a collegium finds that a High Court Judge should never be appointed to the Supreme Court whatever his seniority should it record that fact — which would then be justified and would guide later collegia.

The opinion of the Chief Justice of India under Arts. 124(2), 217(1) and 222(1) must be a collective opinion formed in consultation with a defined plurality of Judges — four for the Supreme Court, two for the High Courts — expressed in writing; that collective opinion has primacy and no appointment may be made contrary to it; but the executive may decline to make an appointment for strong reasons disclosed, and a recommendation made without complying with the norms does not bind the Government.

• Learn the two collegium sizes and do not mix them up: Chief Justice plus four for the Supreme Court; Chief Justice plus two for a High Court, with the High Court Chief Justice consulting his own two seniors.
• State the primacy proposition and its qualification together. The examiner is looking for the distinction between not being able to appoint against the collegium and not being obliged to appoint with it.
• Place it in the sequence: S. P. Gupta (1981) — Second Judges (1993) — this reference (1998) — the NJAC judgment (2015), which struck down the Ninety-ninth Amendment and revived exactly this scheme.