The Three Judges Cases

Cause title and case names

The Second and Fourth cases have the same cause title, so always add the year when you cite them.

The short version

The Constitution says the President appoints judges of the Supreme Court and High Courts after consulting the Chief Justice and others. It never says what happens if they disagree. The Three Judges Cases are the Court's answer to that, given in three rounds over seventeen years.

In 1981 the Court said the government had the last word. In 1993 it said the Chief Justice, after consulting senior colleagues, did. In 1998 it widened that group into the collegium we now talk about. In 2015 it also struck down a constitutional amendment that would have replaced the collegium with a commission.

What the case was about

Articles 124 and 217 use the word consultation. For decades the executive, usually the Law Ministry, treated that as meaning it could decide after listening. Judges treated it as a seniority-based process where the Chief Justice's recommendation almost always went through.

The arrangement broke in the 1970s. In 1976 sixteen High Court judges were transferred under Article 222, among them Justice Sankalchand Sheth of the Gujarat High Court, who was sent to Andhra Pradesh on 27 May 1976 and challenged it. In 1973 and again in January 1977 the Government passed over senior Supreme Court judges for Chief Justice, the second time when M.H. Beg was appointed over H.R. Khanna. Then, on 18 Mar 1981, the Law Minister, P. Shiv Shankar, wrote to governors and chief ministers asking that additional judges be asked to agree to be moved to any High Court. The circular was widely read as a message to judges the government did not like. Lawyers challenged it, along with the non-continuation of additional judges. The first case came out of that.

The four rulings at a glance

Who was involved

• First case: lawyers including S.P. Gupta, a senior advocate of the Allahabad High Court, and others against the Union of India. The petitions were filed in several High Courts and transferred to the Supreme Court, which heard them together.
• Second case: the Supreme Court Advocates-on-Record Association and others, against the Union of India (WP(C) 1303 of 1987). F.S. Nariman, Kapil Sibal, Ram Jethmalani, P.P. Rao and Shanti Bhushan argued for reconsidering S.P. Gupta. Attorney General K. Parasaran largely defended it. A smaller bench had sent the question to nine judges by an order of 26 Oct 1990 in Subhash Sharma v. Union of India.
• Third case: a Presidential Reference. President K.R. Narayanan made it under Article 143 on 23 Jul 1998, with nine questions, to clear doubts about the 1993 decision.
• Fourth case: the Advocates-on-Record Association and others against the Union of India, challenging the 99th Constitutional Amendment and the National Judicial Appointments Commission Act, 2014, which President Pranab Mukherjee signed on 31 Dec 2014.

Issues before the Court

1. What does consultation with the Chief Justice mean in Articles 124, 217 and 222? Is it only advice, or is the Chief Justice's opinion binding?
2. Does a collegium of judges have to be consulted, and who is in it?
3. Can the executive refuse a name the judiciary recommends? Can the Chief Justice be overruled on transfers?
4. Can lawyers and citizens sue over judicial appointments and transfers (locus standi)?
5. In 2015: does a constitutional amendment giving the executive and outsiders a say in appointments destroy the independence of the judiciary, a part of the basic structure?

How each case got there

None of these came up through a High Court or tribunal appeal. They were writ petitions under Article 32 or, in 1998, a Presidential Reference under Article 143. High Court judges appeared only as the people being appointed, transferred or continued.

The First Judges Case gathered petitions that had been filed in several High Courts and transferred to the Supreme Court. The Second came up because a bench hearing Subhash Sharma v. Union of India doubted the 1981 decision on the primacy of the Chief Justice and on whether judge strength could be challenged in court, and by its order of 26 Oct 1990 asked for a bench of nine judges.

The benches

First Judges Case, 1981

Seven judges: P.N. Bhagwati (lead opinion), A.C. Gupta, S. Murtaza Fazal Ali, V.D. Tulzapurkar, D.A. Desai, R.S. Pathak and E.S. Venkataramiah. The judges wrote separate opinions.

Second Judges Case, 1993

Third Judges Case, 1998

Nine judges: S.P. Bharucha (who gave the opinion), M.K. Mukherjee, S.B. Majmudar, Sujata V. Manohar, G.T. Nanavati, S. Saghir Ahmad, K. Venkataswami, B.N. Kirpal and G.B. Pattanaik.

NJAC case, 2015

The hearing

• First Judges Case: decided on 30 Dec 1981 by seven judges.
• Second Judges Case: referred to nine judges on 26 Oct 1990 and decided on 6 Oct 1993.
• Third Judges Case: the President's Reference is dated 23 Jul 1998 and the opinion was given on 28 Oct 1998.
• The published reports for the first three cases do not record when arguments began or ended or when judgment was reserved.
• NJAC case: a three-judge bench sent the challenge to a five-judge Constitution Bench on 7 Apr 2015 and hearing started on 15 Apr. The Centre asked for the case to go to an even larger bench, and the Court refused on 12 May and went into the merits.
• The bench heard the case in more than 30 hearings. Judgment was reserved on 15 Jul 2015, with the interim order on appointment of additional High Court judges continuing until the verdict, and pronounced on 16 Oct 2015.

What the Court held

First Judges Case, 1981

• Consultation does not mean concurrence. The final decision on appointments stayed with the executive.
• The Chief Justice's recommendation could be turned down for cogent reasons.
• Lawyers have standing to challenge the way judges are appointed or transferred. This part of the judgment is the starting point of public interest litigation.

Second Judges Case, 1993

• The 1981 ruling was overruled.
• The Chief Justice's opinion, formed after consulting the two senior-most judges, has primacy in Supreme Court appointments.
• The executive can send a recommendation back once. If the Chief Justice and the other judges repeat it, the President must appoint.
• Independence of the judiciary is part of the basic structure.

Third Judges Case, 1998

• A collegium of the Chief Justice and the four senior-most Supreme Court judges recommends Supreme Court appointments and transfers.
• For High Courts, it is the Chief Justice and the two senior-most judges.
• The Chief Justice acting alone is not enough. If two judges of the collegium disagree, the recommendation should not go ahead.
• The Chief Justice must also consult senior judges who know the High Court in question.

NJAC case, 2015

• The 99th Constitutional Amendment and the NJAC Act, 2014 were struck down by 4:1.
• The majority held that the commission's composition, which included the Law Minister and two outside members, weakened the judiciary's primacy and so independence, which is part of the basic structure.
• The collegium came back into force.
• Chelameswar J. dissented. He criticised the collegium for being opaque and said the amendment should have been upheld.

What changed afterwards

After the NJAC judgment the Court said it would consider appropriate measures to improve the collegium system.

On 3 Oct 2017 the collegium resolved to put its decisions, with reasons, on the Supreme Court website for transparency, and a new Collegium Resolutions tab appeared. The reasons have often been thin, and some resolutions have been published with none.

Appointments are still decided by the collegium. Its decisions are regularly discussed in Parliament and by the executive, and the long gaps between a collegium recommendation and a notification have become a recurring subject in Court. The NJAC judgment applied the same basic structure idea as Kesavananda Bharati.

Related cases

• Kesavananda Bharati The NJAC judgment is an application of the basic structure doctrine.