Supreme Court Restores Primacy of Chief Justice of India in Judicial Appointments and Transfers

Nine-Judge Bench Overrules Majority Opinion in S.P. Gupta Case, Emphasizes Judiciary’s Role to Safeguard Independence and Justiciability of Judge Strength Fixation

In a landmark judgment delivered on October 6, 1993, the Supreme Court of India, in a nine-judge constitutional bench, revisited and overruled key aspects of the 1982 S.P. Gupta case relating to the appointment, transfer, and strength of judges in the Supreme Court and High Courts. The bench, headed by Justice J.S. Verma along with other eminent judges including S. Ratnavel Pandian and Kuldip Singh, laid down comprehensive principles reaffirming the constitutional primacy of the Chief Justice of India (CJI) in judicial appointments and transfers, thereby strengthening the independence of the judiciary.

The case arose from writ petitions filed by the Supreme Court Advocates-on-Record Association and others challenging the exclusive primacy of the executive in judicial appointments, arguing that the executive’s dominance threatened judicial independence. The earlier S.P. Gupta majority judgment had held that the power to appoint judges rested primarily with the executive, and that the CJI’s opinion was only consultative without primacy or veto power.

The Constitution Bench, after detailed analysis of constitutional provisions, legislative history, and international practices, held that:

• 1. The appointment of judges to the Supreme Court and High Courts is an integrated, participatory consultative process involving the executive and judiciary. However, when there is any conflict in opinions, the judiciary’s view, symbolized by the opinion of the Chief Justice of India, is entitled to primacy.
• 2. The CJI’s opinion in judicial appointments is not merely individual but formed collectively after consulting two senior-most Supreme Court judges and other relevant judges familiar with the candidate’s background. Similarly, the Chief Justice of a High Court must consult two senior-most judges of that High Court before forming an opinion.
• 3. No appointment to the superior judiciary can be made unless it conforms to the final opinion of the CJI formed through such consultative process.
• 4. While the executive can suggest names for consideration, it cannot initiate appointments bypassing the CJI or Chief Justice of the concerned High Court. The executive’s role is limited to providing background or character information, but the final evaluation of merit and suitability lies with the judiciary.
• 5. The CJI enjoys a unique constitutional position, distinct from other Supreme Court judges, with administrative and supervisory roles justifying primacy in appointment and transfer matters.
• 6. Transfers of High Court judges and Chief Justices can only be made after consultation with the CJI, who must also initiate transfer proposals. Consent of the judge to be transferred is not required. Transfers must be in public interest and are not subject to judicial review.
• 7. Fixation of judge strength in High Courts is a constitutional duty of the executive but is justiciable to the extent that courts can issue mandamus directing the executive to perform this duty based on the recommendation of the judiciary, especially the CJI and the Chief Justice of the High Court.
• 8. Appointment to the office of the CJI should be made on the basis of selection on merit, not mere seniority, to ensure capable leadership of the judiciary.

The judgment emphasized that judicial independence is a basic feature of the Constitution and is essential to the rule of law and democracy. The Court stated that the selection and appointment processes should prevent political interference and ensure that only judges of the highest integrity, ability, and judicial temperament are appointed. The executive and judiciary must cooperate in these matters, with the CJI’s opinion carrying decisive weight to preserve the judiciary's independence and public confidence.

The Bench also addressed constitutional conventions, noting that while the Constitution mandates consultation with the CJI, long-standing conventions have evolved recognizing the CJI’s primacy in judicial appointments. It rejected the earlier view that the executive alone had the unfettered discretion to override judicial opinion and clarified that the executive must act in accordance with the consultative process that upholds judicial independence.

The Court further cautioned against frequent judicial overreach but acknowledged its duty to interpret the Constitution in light of changing circumstances and to ensure that its fundamental structures, including judicial independence, remain intact.

This judgment marks a significant evolution in Indian constitutional jurisprudence by reinforcing the role of the judiciary in its own composition and administration and limiting executive intrusion. It also recognizes the justiciability of issues like judge strength, thereby obliging the government to act in a timely manner to maintain an efficient judiciary.

The Supreme Court’s decision provides a robust constitutional framework to protect judicial independence through the primacy of the Chief Justice of India in appointments and transfers, ensuring a judiciary that is not only independent in theory but also in practical administration.

Statutory provisions:- Articles 14, 50, 74, 124(2), 146(2), 148, 217(1), 222, 224, 225, 226, 235, 239, 280, 311, 320, 338, 350-B of the Constitution of India

Supreme Court Advocates-on-Record Association v. Union of India, (SC) : Law Finder Doc Id # 80303