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Dr. B.R.

Ambedkar National Law University


In the First Judges Case (1981), the apex court held (4-3) that in the appointment
of a judge of the Supreme Court or the High Court, the word “consultation” in
Article 124(2) and in Article 217(1) of the Constitution does not mean “concur-
rence”.

In the event of a disagreement, the “ultimate power” would rest with the Union
Government and not the CJI, the SC ruled. The First Judges Case, therefore, was
an instance where the apex court acted against its own interests.
12 years later, the court would change its stance.

The issues over appointments and transfers of judges didn’t stop there. The ruling

party in 1981 issued a circular letter dated 18 the of March, 1981 to the Governor

of Punjab and the Chief Ministers of other states asking them to seek consent of

the Additional judges working in their respective High Courts to make them per-

manent judges in any other High Courts in India. They also were to give names, in

order of preference, of any three High Courts to which they would prefer to be

transferred as permanent judges. The Government of India reasoned that it

wanted to abolish the discrimination on the basis of caste and kinship and hence

one third of the strength of any High Court should be of any other High Court of a

different state in India.


The letter also asked to obtain consent of persons who were to be appointed ini-

tially as judges, to transfer them to any other High Court and take their order of

preferences of the High Court to which they would prefer to be transferred.

However, the letter had a rider that the Government was not bound by the con-

sent and the preferences. This meant that the executive had taken away the in-

dependence of judiciary. Different advocate associations passed a resolution that

the circular subverted the independence of judiciary and the Government of India

should withdraw the circular. Since the Government of India did not withdraw, a

chain of petitions were filed in different High Courts challenging the validity of

the circular and seeking a declaration that any consent received by any additional

judge or any person whose name had been or was to be given for appointment as

a judge and their preference given in consequence and arising from that circular ,

should be held null and void. Since all these petitions filed in different High

Courts were addressing the same issues and as they were of great constitutional

importance, they were transferred to the Apex Court under article 139 of the

Constitution and heard together. This was the first case in the row of three cases

that gave birth to the collegium system of appointment.

First Judges Case: S P Gupta Vs. Union of India And Ors. AIR 1982 SC 149. on

30th of December, 1981.

In this case the Court held that ‘where there is difference of opinion among the

Constitutional functionaries in regard to the appointment of a judge in a High


Court, the opinion of none of the Constitutional functionaries is entitled. How-

ever, Government of India should come to its own decision as to which opinion it

should accept in appointing a particular person as a Judge… where a judge of the

Supreme Court is to be appointed, the Chief Justice of India is required to be con-

sulted, but again it is not concurrence but only consultation and the Central Gov-

ernment is not bound to act in accordance with the opinion of the Chief Justice

of India.The ultimate power of appointment rests with the central Government

and that is in accord with the Constitutional practice prevailing in all democratic

countries. To the contention of the petitioners that Clause 2 of Article 124 used

the word “may” and hence the Central Government may or may not consult the

judges of the High Court and the Supreme Court in appointing judges; And when

it does not, the opinion of the Chief Justice of India should be held final- The

Court said that the word “may” in the Article only makes it optional to the Cen-

tral Government as to which of the judges it should consult. It does not make it

optional for the Central Government to consult or not. Hence the Central Govern-

ment must consult but ultimately the power of appointment should rest on the

Central Government. The case also suggested that there should be a collegium of

judges for appointment and transfer of judges. This this case upheld the Primacy

of Executive in appointment and transfer of judges.


First Judge Case:

• The S P Gupta case (December 30, 1981) is called the "First Judges Case". It
declared that the "primacy" of the CJI's recommendation to the President can
be refused for "cogent reasons".
• This brought a paradigm shift in favour of the executive having primacy over
the judiciary in judicial appointments for the next 12 years.

In the S.P. Gupta case (the First Judges’ Case, 1981), the Supreme Court held by a majority that
among the opinion of the three constitutional functionaries, the opinion of the Chief Justice of India
did not enjoy primacy over those of the other two in the matter of appointment of judges. This view
paid due regard to plain language; ‘consultation’ was not an ambiguous word at all. It is also re-
markable that this view was taken by the court just eight years after Kesavananda Bharati. It was a
restrained judiciary. It needs to be noted that the judgment was delivered in December 1981 after
Indira Gandhi had returned to power with a decisive majority, after two short lived and weak gov-
ernments.
The majority felt that the earlier majority view in the First Judges’ Case to the effect that the execu-
tive should have primacy (since it is accountable to people while the judiciary has no such accounta-
bility), ‘is an easily exploded myth, a bubble which vanishes on a mere touch.’ Why? Because ac-
cording to the majority, there is no occasion to discuss the merit of any individual appointment in the
legislature on account of the restriction imposed by Article 121 and 211 of the Constitution (these
provisions prohibit discussion in legislatures on the conduct of a judge, in the discharge of his duties.
Their relevance to the question of democratic accountability is far from clear).

‘On the other hand, in actual practice the Chief Justice of India and the Chief Justice of the High
Courts, being responsible for the functioning of the courts, have to face the consequence of any un-
suitable appointment which gives rise to criticism levelled by the ever vigilant bar.’ And, of course,
it is the judges who are best equipped to assess the suitability of lawyers to be on the bench because
it is the courts which are the arenas where they perform. In other words, the technical competence of
lawyers could best be appraised by judges.

Famous case, S.P.Gupta Vs Union of India[1] 1982, this is popularly known as Judges
Transfer case. The Supreme Court unanimously agreed with the meaning of the term
consultation in Article 212, 22, 124(1)* of the constitution. In the above, Supreme
Court Advocates on Record case, the Supreme Court held that the Chief Justice shall
have to consult two other senior most Judges of the Supreme Court before sending
his opinion. In this Judgement, the Supreme Court laid down certain guidelines.
a) Individual initiation of high constitutional functionaries in the matter of appoint-
ment of Judges reduced to minimum. It gives privacy to the Chief Justice of India but
puts a check on him to consult at least two of his senior most colleagues.

b) Constitutional functionaries must act collectively in Judicial Appointments.

c) Appointment of Chief Justice of India by seniority only.

d) No Judge can be appointment by the Union Government without Consulting the


Chief Justice of India.
The Supreme Court, while upholding the Independence of Judiciary in appointment
of Judges of the Supreme Court and High Court, on the basis of the term “consulta-
tion” under Article 217(1)* and 222 of the constitution in the formation of the opinion
of the Chief Justice of India after consultation has to be sent to the President. Two
senior most Judges of the Apex Court have to assist the Chief Justice of India to form
an opinion. However, the question regarding political interference in the matter of
appointment of Supreme Court and High Court Judges, still exists

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