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SUPREME COURT ADVOCATE-ON-RECORD ASSOCIATION vs. UNION OF INDIA

SUPREME COURT ADVOCATE-ON-RECORD ASSOCIATION vs. UNION OF INDIA

By Jyoti Singh

EQUIVALENT CITATION: AIR 1994 SC 868

CASE NO.: Writ Petition (civil)1303 of 1987

RESPONDENT: Union of India

DATE OF JUDGMENT: 06/10/1993

BENCH: Ratnavel Pandian, A.M. Ahmadi, Kuldip Singh, J.S. Verma, M.M. Punchhi, Yogeshwar Dayal, G.N. Ray, Dr. A.S. Anand, S.P. Bharucha

ISSUES OF THE CASE: Scope of the word “Consultation” in Article 124(2) of Constitution of India.

FACTS OF THE CASE: In the late 1980s, a practicing lawyer of the Supreme Court Subash Sharma, the Supreme Court Advocates-on-Record Association and the Honorary Secretary of the Bombay Bar Association filed petitions before the SC asking for vacancies of judges of various High Courts and Supreme Court be filled. While hearing the petitions, the Supreme Court felt the need to have its decision in the First Judges case, S.P Gupta vs. President of India, reconsidered by a larger bench.

The question of appointment and transfer of judges was, thus, referred to a nine-judge bench.

In the First Judges Case, a circular issued by the law minister was challenged. It requested the Governors and Chief Ministers to-

  1. Obtain the consent of additional judges of relevant High Courts (whose post was not confirmed) to be appointed as Permanent Judges in any other High Court in India, and

  2. Obtain the consent of people who would be offered judgeship in future to be appointed initially in a High Court other than their state High Court.

PILs and Writ Petitions were filed. Some questioned the practice of appointing additional judges even when there were vacancies for permanent judges; others questioned the constitutionality of transferring judges from one High Court to another. Some also questioned the need for consent of judges in such transfer.

While the Supreme Court, in this case, opened the gates of PILs to public-spirited citizens, apart from the victims of such encroachment of rights , it ruled in favor of the executive, giving it the driver’s seat in the judicial appointment process, giving the CJI or Chief Justice of any High Court only consultative role.

THE JUDGMENT OF THE CASE:

The nine-judge bench overruled the decision in the First Judges case and observed that judicial appointments should be “integrated, participatory and consultative”. Both judiciary and executive were to make the appointments collectively. When the government (via the President) conflicted with the CJI or Chief Justice of any High Court, the opinion of the latter would prevail in judicial appointments.

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