Quick answer
In S.P. Gupta v. Union of India (decided 30 December 1981), known as the First Judges Case, a seven-judge bench of the Supreme Court held by majority that "consultation" with the Chief Justice of India under Articles 124(2) and 217(1) does not mean concurrence (agreement). The Central Government had the final say on appointing judges, though the consultation had to be full and effective. This view on executive primacy was later rejected by the Second Judges Case (1993), which gave primacy to the judiciary and led to the collegium system.
The case
S.P. Gupta v. Union of India, AIR 1982 SC 149, Supreme Court of India, 30 December 1981. Bench of seven judges: P.N. Bhagwati, A.C. Gupta, S.M. Fazal Ali, V.D. Tulzapurkar, D.A. Desai, R.S. Pathak and E.S. Venkataramiah, JJ. The petitions, filed largely by lawyers, challenged the short extensions given to additional judges of the Delhi High Court and orders transferring High Court Chief Justices under Article 222. The majority held that the power to appoint judges rests with the Central Government after consulting the constitutional functionaries, and that the Government is not bound by their opinion.
Key holdings
- Consultation is not concurrence: the President (in substance, the Central Government) must consult the Chief Justice of India and the other named functionaries, but may take its own decision after giving due weight to their views.
- No primacy for the Chief Justice of India: the majority rejected the argument that the Chief Justice's opinion should prevail. In a difference of opinion, the Government decides whose view to accept.
- Full and effective consultation: every functionary consulted must have the same full facts before giving an opinion. The Government's decision could be challenged only on grounds such as mala fides (bad faith) or irrelevant considerations.
- Additional judges: an additional judge whose term ends has no automatic right to reappointment, but cannot simply be dropped without being considered; the Article 217(1) consultation procedure must be followed again.
- Public interest litigation: the Court widened locus standi (the right to bring a case). Lawyers with a real interest in the independence of the judiciary could approach the Court for a public injury.
- Open government: Justice Bhagwati described the right to know as implicit in Article 19(1)(a), so disclosure of government information should be the rule and secrecy the exception.
How the Judges Cases changed the law
| Case | Year | Position on appointments |
|---|---|---|
| First Judges Case (S.P. Gupta) | 1981 | Executive primacy; consultation is not concurrence |
| Second Judges Case (Supreme Court Advocates-on-Record Association v. Union of India) | 1993 | Nine-judge bench; primacy to the opinion of the Chief Justice of India formed collectively with senior judges; S.P. Gupta's contrary view rejected |
| Third Judges Case (Presidential Reference) | 1998 | Presidential Reference that built on the Second Judges Case; in 2015 the Court refused to reconsider it |
| Fourth Judges Case (NJAC case) | 2015 | Constitution (Ninety-ninth Amendment) Act, 2014 and the National Judicial Appointments Commission Act, 2014 declared unconstitutional; collegium system revived |
Example
Suppose that in 1985 the Chief Justice of India advised against appointing Advocate Farhan to a High Court, but the Central Government appointed him anyway after a full consultation. Under S.P. Gupta, the appointment would stand, because the Government had the final word. After the Second Judges Case (1993), an appointment made against the collective opinion of the Chief Justice of India and senior judges would not be valid.
Current position
S.P. Gupta is no longer good law on primacy. In 1993 the Second Judges Case stated that the majority view in S.P. Gupta, so far as it denied primacy to the Chief Justice of India in appointments and transfers, was not the correct view. In 2015 the Supreme Court refused to reconsider the Second and Third Judges Cases and struck down the NJAC scheme. The parts of S.P. Gupta on standing in public interest litigation and on open government are still widely cited. For the wider story of public interest litigation, see Judicial activism and public interest litigation.
Exam point
First Judges Case (1981): "consultation" does not mean "concurrence", so the executive had primacy. This was overruled on primacy by the Second Judges Case (1993), which created the collegium system.
