Constitutional Law

Third Judges Case: In Re: Special Reference No. 1 of 1998

(1998) 7 SCC 739

Citation: (1998) 7 SCC 739
Court: Supreme Court of India
Date: 28 October 1998
Bench: M.M. Punchhi C.J.; S. Saghir Ahmad; K.T. Thomas; M. Srinivasan; D.P. Wadhwa; S.B. Majmudar; Sujata V. Manohar; G.B. Pattanaik; D.P. Mohapatra

Facts

After the Second Judges Case, disagreements arose over how the collegium system should work.
Questions included:
how many judges the Chief Justice of India had to consult;
whether the Chief Justice could act despite disagreement among senior judges;
how appointments to the Supreme Court and High Courts differed;
how transfers should be handled; and
what role the Union Government retained.
The President referred nine questions to the Supreme Court under Article 143.
A nine-judge Bench provided an advisory opinion clarifying the appointment and transfer process.

The Chief Justice of India’s constitutional opinion is a collective opinion, not an individual one.
For appointments to the Supreme Court, the Chief Justice must consult the four senior-most Supreme Court judges.
For appointments to a High Court, the Chief Justice ordinarily consults the two senior-most Supreme Court judges.
Judges familiar with the affairs of the concerned High Court should also be consulted where relevant.
A recommendation should not be made where the required collegium does not support it.
For Supreme Court appointments, serious adverse views of two members ordinarily prevent recommendation.
The Government may return a recommendation once for reconsideration with reasons.
If the collegium reconsiders and unanimously reiterates it, the appointment should ordinarily be made.
Transfers require broader consultation, including judges with knowledge of the transferring and receiving High Courts.

The Court clarified that the Second Judges Case had never intended to create a personal power in the office of the Chief Justice.
Judicial primacy means institutional judicial decision-making.
A larger collegium for Supreme Court appointments provides:
diverse assessment;
protection against individual preference;
greater institutional legitimacy; and
reduced risk of arbitrary selection.
High Court appointments require knowledge of:
the local Bar;
the candidate’s work;
the concerned High Court; and
relevant regional considerations.
Therefore, the constitutional process begins substantially with the concerned High Court and is later examined by the Supreme Court collegium.
The Government may contribute relevant intelligence or adverse information.
The Chief Justice cannot ignore such material personally.
It must be shared and considered with collegium members.
Similarly, if the executive requests reconsideration, the decision to reiterate must be collective.
On transfers, consultation must be especially broad because a transfer affects:
judicial administration;
institutional independence; and
the individual judge.
The Court nevertheless maintained that consent of the transferred judge was not constitutionally mandatory.
The safeguard lay in plural judicial consultation rather than personal consent.

The Court unanimously clarified and expanded the collegium process.
The Supreme Court collegium for appointments would consist of the Chief Justice of India and four senior-most judges.
High Court appointment recommendations would ordinarily involve the Chief Justice and two senior-most Supreme Court judges.