CENTRAL UNIVERSITY OF SOUTH BIHAR

PROJECT REPORT ON :- IN RE PRESIDENTIAL REFERENCE,

AIR 1999 SC 1

Under the guidance of

Mrs. Poonam kumari

Assistant professor

School of law and Governance.

Submitted by

Rohit Kumar

3rd Semester, B.A. L.L.B. (Hons.)

CUSB1813125079

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 Acknowledgement

I would like to express my deep and sincere gratitude to my project supervisor, Mrs.
Poonam Kumari, Assistant Professor School of Law and Governance, Central
University of South Bihar, Gaya (Bihar), for giving me the opportunity to do this project
and providing invaluable guidance throughout this project. Her dynamism, vision,
sincerity and motivation have deeply inspired me. She has taught me the methodology to
carry out the project and to present the project works as clearly as possible. It was a great
privilege and honor to work and study under her guidance. I am extremely grateful for
what she has offered me.
I am extremely grateful to my parents for their love, prayers, caring and sacrifices
for educating and preparing me for my future. Special thanks goes to my friend for the
keen interest shown to complete this project successfully.
Finally, my thanks go to all the people who have supported me to complete the
project work directly or indirectly.

Rohit kumar

CUSB1813125079

3rd Semester, B.A. L.L.B. (Hons.)

School of Law and Governance

Central University of South Bihar

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 TABLE OF CONTENT

S.N. CONTENT P.N.

1. Introduction 03
2. How Collegium System Works? 04
3. Case Laws 07
4. Judgement 13
5. Conclusion 18
6. Bibliography 19

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 Introduction

The Supreme Court of India was inaugurated on January 28, 1950. It succeeded the Federal Court
of India which was established under the Government of India Act, 1935.

Article 124 to 147 in Part V of the Indian Constitution envisages the powers, independence
jurisdiction of the supreme court.

The maximum strength of the Supreme Court can be 31 judges (one Chief Justice and 30 other
judges) while currently there are just 27 judges (including Chief Justice) working in the Supreme
Court and 4 posts are vacant.

What is the Collegium System?

The Collegium System is a system under which appointments/elevation of judges/lawyers to

Supreme Court and transfers of judges of High Courts and Apex Court are decided by a forum of
the Chief Justice of India and the four senior-most judges of the Supreme Court.' There is no
mention of the Collegium either in the original Constitution of India or in successive amendments.

The Collegiums System of appointment of judges was born through “three judges case” “which
interpreted constitutional articles on October 28, 1998.

The recommendations of the Collegium are binding on the Central Government; if the Collegium
sends the names of the judges/lawyers to the government for the second time.

How Collegium System Works?

The Collegium sends the recommendations of the names of lawyers or judges to the Central
Government. Similarly, the Central Government also sends some of its proposed names to the
Collegium. The Central Government does the fact checking and investigate the names and resends
the file to the Collegium.

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Collegium considers the names or suggestions made by the Central Government and resends the
file to the government for final approval. If the Collegium resends the same name again then the
government has to give its assent to the names. But time limit is not fixed to reply. This is the
reason that appointment of judges takes a long time.

Here i would like to give the example of Chief Justice of the Uttrakhand High Court. In this case
the Collegium is recommending the name of the Chief Justice K.M. Joseph for the judge of the
Supreme Court but the central government is not giving its assent due to political reasons.

It is worth to mention here that there are 395 posts of the judges are vacant in the High Courts and
4 posts in the Supreme Court. There are 146 names are pending for approval between the Supreme
Court and Central Government since last two years. Out of these 146 names 36 names are pending
with the Supreme Court Collegium, while 110 names are yet to be approved by the Central
Government.

Following are the three cases:

 S. P. Gupta v. Union of India - 19811

 Supreme Court Advocates-on Record Association vs Union of India -2
 In re Special Reference3

Over the course of the three cases, the court evolved the principle of judicial independence to mean
that no other branch of the state - including the legislature and the executive - would have any say
in the appointment of judges. The court then created the collegium system, which has been in use
since the judgment in the Second Judges Case was issued in 1993. There is no mention of the
collegium either in the original Constitution of India or in successive amendments. Although the
creation of the collegium system was viewed as controversial by legal scholars and jurists outside
India, the Parliament and the executive, both have done little to replace it. The Third Judges Case
of 1998 is not a case but an opinion delivered by the Supreme Court of India responding to a
question of law regarding the collegium system, raised by then President of India K. R. Narayanan,
in July 1998 under his constitutional powers.

1
the Judges' Transfer case
2
Air 1993 SC 2
3
Air 1993 SC 1

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Further, in January 2013, the court dismissed as without locus standi, a public interest litigation
filed by NGO Suraz India Trust that sought to challenge the collegium system of appointment.

In July 2013, Chief Justice of India P. Sathasivam spoke against any attempts to change the
collegium system.

On 5 September 2013, the Rajya Sabha passed The Constitution(120th Amendment) bill, 2013,
that amends articles 124(2) and 217(1) of the Constitution of India, 1950 and establishes
the National Judicial Appointments Commission, on whose recommendation the President would
appoint judges to the higher judiciary.

The amendment was struck down by the Supreme Court for being unconstitutional on 16 October,
2015. The constitutional bench of Justices J. S. Khehar, Madan Lokur, Kurian Joseph and Adarsh
Kumar Goel had declared the 99th Amendment and NJAC Act unconstitutional while
Justice Chelameswar upheld it.

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 Case laws
S.P. Gupta V. President of India

Various High Courts transferred to the Supreme Court writs “of great constitutional importance
affecting the independence of the judiciary,” concerning, generally, the appointment of judges
(paras. 1-11).

The relevant portion of this case concerns the disclosure of certain correspondence between the
Law Minister, Chief Justice of Delhi and Chief Justice of India, and the relevant notes made by
them in regard to the non-appointment of a judge for a further term and the transfer of a High Court
Judge. Petitioners, and one of the judges in question, sought the disclosure of these documents
(para. 55).

The government argued that the documents were privileged from disclosure on two grounds: first,
as advice from the Council of Ministers to the President, relying on Article 74(2) of the
Constitution, which reads “The question whether any, and if so what, advice was tendered by
Ministers to the President shall not be inquired into in any Court.” (para. 58); and second, on the
ground that their disclosure would “injure public interest, ” according to Section 123 of the Indian
Evidence Act. “No one shall be permitted to give any evidence derived from unpublished official
records relating to any affairs of State, except with the permission of the officer at the head of the
department concerned, who shall give or withhold such permission as he thinks fit”4. The Court
cited Section 162 as necessary for the interpretation of Secion 123: “A witness summoned to
produce a document shall, if it is in his possession or power, bring it to court, notwithstanding any
objection which there may be to its production or to its admissibility. The validity of any such
objection shall be decided on by the court”.

Decision

The Court identified the issue as “an extremely important question in the area of public law
particularly in the context of the open society” as it “involved a clash between two competing
aspects of public interest”—public access to documents and the need for protection of certain
confidential documents.

4
Section 123 of the Indian Evidence Act

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First, the Court rejected the government’s assertion that the documents were protected from
disclosure on the grounds that they were advice from the Council of Ministers to the President.
The Court recognized that it does not have the constitutional authority to inquire into the
justifications for decisions of the Council of Ministers. However, in this case the advice that the
Council of Ministers ultimately tendered to the President was formed after consultation with the
Chief Justice of the High Court and the Chief Justice of India. The Court opined that the fact that
the opinions of the Chief Justice of the High Court and the Chief Justice of India ultimately
contributed to the Council of Ministers’ advice, does not actually render them part of the advice
that is protected from disclosure by section 74(2) (para. 60).

Second, the Court addressed why the information in question cannot be protected from disclosure
based on section 123. Based on the language of section 162, the Court indicated that when the
admissibility of a document is contested, the Court may inspect the document, take other evidence
into account, and determine its admissibility . In a prior case, State of Punjab v. Sodhi Sukhdev
Singh5, the Court identified that the principle behind the section 123 exclusionary rule is public
interest, and asserted that this must thus be addressed . The Court indicated that when there is an
objection to disclosure, the Court must consider whether the document related to the affairs of
state, and whether its disclosure would be injurious to the public interest. The injury that should
be avoided is a potential disruption of the proper functioning of the government as a result of
disclosure. The Court opined that the Chief Justice of a High Court and the Chief Justice of India
would not have been deterred from performing their constitutional duty of expressing their views
had they been aware that these views might be disclosed to the public. Thus, there is no public
interest justification for non-disclosure.

The Court recognized that a democratic society cannot keep the activities of the government hidden
from the public in order to avoid accountability and criticism. Recognizing a “right to know which
seems implicit in the right of free speech and expression,” the Court reasoned that: “Where a
society has chosen to accept democracy as its creedal faith, it is elementary that the citizens ought
to know what their government is doing. The citizens have a right to decide by whom and by what
rules they shall be governed and they are entitled to call on those who govern on their behalf to
account for their conduct. No democratic government can survive without accountability and the

5
Air 1961 SC 493

8
basic postulate of accountability is that the people should have information about the functioning
of the government. It is only if people know how government is functioning that they can fulfil the
role which democracy assigns to them and make democracy a really effective participatory
democracy” .

The Court also defined open government deriving from the right to know implicit in free speech
and expression rights guaranteed under Article 19(1)(a) of the Constitution.

The Court identified a presumption of disclosure: “Disclosure of information in regard to the

functioning of Government must be the rule and secrecy an exception justified only where the
strictest requirement of public interest so demands. The approach of the court must be to attenuate
the area of secrecy as much as possible consistent with the requirement of public interest, bearing
in mind all the time that disclosure also serves an important aspect of public interest".

Supreme court advocate on record v. Union of India (1993)

The case is based on the independence of the judiciary as the part of basic structure of the
Constitution. This case is famously known as ‘Second Judges Case”. To secure the ‘Rule of Law’
which is essential for the preservation of the democratic system and the separation of powers which
is adopted in the constitution with the directive principles of ‘Separation of judiciary from the
executive’, the case was decided on 6th October 1993.After its judgement, the collegium system
was adopted in the appointment of judges of Supreme Court and High Courts. Nine Judges
examined two questions:

1. The position of the Chief Justice of India.

2. The justiciability of fixation of judge strength.
3. Facts

The nine-Judge Bench not only overruled S.P. Gupta’s case, but also devised a specific procedure
for appointment of Judges of the Supreme Court in the interest of “protecting the integrity and
guarding the independence of the judiciary.” For the same reason, the primacy of the Chief Justice
of India was held to be essential. The bench held that the recommendation in that behalf should be
made by the Chief Justice of India in consultation with his two senior-most colleagues and that
such recommendation should normally be given effect to by the executive. Thus, in 1993, the Chief

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Justice of India got primacy in appointing judges, and till this time, it was the government’s job to
fill vacancies in HCs and the SC. The matters relating to the appointment of the judiciary have
plagued and perplexed the judicial mind ever since the inception of the constitution. This matter
has to be resolved by the interpretation of the constitutional provisions relating to the appointment
of judiciary. The omnipresent bogey haunting every pronouncement is the independence of the
judiciary. A delicate balance had to be struck between democratic control of an essentially
undemocratic institution and impartial arbitration. The matter came up for adjudication in Sankal
Chand vs. Union of India6, where the court upheld the transfer of the Chief Justice of Himachal
Pradesh. However, by 1982, the debate had reached epic proportions. These matters took solid
form in a batch of writ petitions questioning the move to transfer the judges challenging the
affected transfer of some judges and demanding the justifiability of judge strength.

The Supreme Court, while disposing of the matter, vested the ultimate control with the Central
Government [3]. At this juncture, a bill was introduced in the parliament seeking to amend the
Constitution Bill 19907 seeking to amend articles 124(2), 217(1), 222(1) and 231 (2) (a). This bill
brought to empower the president to set up a judicial commission known as National Judicial
Commission. The avowed objective was to implement the 121st Law Commission Report. This
report recommended that a judicial commission is set up to oversee the appointment of the
judiciary. However, nothing came of this as the bill lapsed with the dissolution of the 9th Lok
Sabha. The writ petitions seeking a review of SP Gupta case were heard by a three judge bench,
namely Chief Justice Ranganath Mishra and Justices M N Venkatachaliah and M M Punchhi,
which recommended reconsideration.

Issues

There were broadly two issues in this case:Whether the opinion of Chief Justice of India should
be given primacy with regard to the appointment and selection of Judges of High Courts and the
Supreme Court, as well as in the transfer of Judges from one High Court to other?

6
Air 1976 sc
7
67th Amendment 1990

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  Import of the Term ‘Consultation’

The first major issue was the import of the term “consultation” occurring in Art. 124. The majority
held that it indicates an integrated, participatory and consultative process. This entails the full
discharge of constitutional obligations on the part of constitutional functionaries. Various
approaches have been used by the judges to show that “consultation” means occurrence or primacy
notably among which are”

1. The Chief Justice of India as a ‘PaterFamilias’ would be in the best position to judge.
2. In contrast to other constitutions, the Indian constitution does not vest absolute
discretion in the hands of the executive. Hence, the Chief Justice of India cannot be
regarded as an inferior position.
3. The practice of appointments has become an inseparable part of the constitution leading
to the formation of a convention. This convention does not allow the making of an
appointment without the concurrence of the Chief Justice of India.
4. The central government being a litigant in a large number of cases before the court
cannot be a party to the appointment of judges.
5. All the judges have also given the maintenance of the independence of the judiciary as
a reason.

The initiation of the proposal must be made by the Chief Justice of India. In the case of a High
Court, the proposal must emanate from the Chief Justice of that concerned High Court. The Chief
Justice of India is expected to initiate any proposal for transfers. Further, a check has been placed
at the discretion of the Chief Justice of India, who is now bound to consult with two of his senior-
most colleagues. Thus the Chief Justice of India will effectively mean this judicial troika. If a
proposal for appointment is made by this judicial troika and is turned down by the central
government, there are two possibilities. These depend upon the concurrence of the senior most
colleagues. The other two judges are of the view that it must be withdrawn, the recommendation
will be withdrawn. However, if they are in concurrence with the Chief Justice of India, the
recommendation will be made again and it has to be accepted.

 The Criteria for Appointment

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In relation to the appointment of the Chief Justice of India, the majority held that seniority must
be the prevailing criteria, provided of course the person in question is fit. In relation to the
appointment of judges to the Supreme Court, the seniority semi-quotes inter se in the High Court
as well as their combined seniority have to be given weightage. Further, the legitimate expectations
of the judges slated for elevation must be kept in mind.

 The Transfer of High Court Judges

o Consent of the transferee is irrelevant. However, the personal factors of the
transferee must be kept in mind by the Chief Justice of India while affecting
the transfer. This is in conformity with the decision rendered in the SP Gupta
case. The transfers affected must not be deemed to be punitive.
o Justiciability of such transfers is not possible, except on the ground that a
transfer was not made on the recommendations of the Chief Justice of India.

Whether these matters, as well as that of fixation of the number of Judges of each High Court, is
justiciable?

 Justifiability of Judge Strength

The fixation of judge strength is justiciable but, it must be shown that lack of strength is leading
to “slow justice”, (that speedy justice in courts is a fundamental right in respect of criminal trials)
The opinion of the Chief Justice of India and the Chief Justice of respective High Court must be
taken into account8.

Other Issues

 Appointment of the Less Privileged Class

Justice Ratnavel Pandian has devoted a substantial part of his judgement to throw light the
inadequate representation of certain classes. He has adduced statistics to show that women, OBCs,

8
Article 21

12
SCs, STs have not been given adequate representation. He has, therefore, placed an onus upon the
government to forward the list of these classes, upon which the Chief Justice of India shall decide.

Ratio Decidendi

In 1993, a nine-Judge Constitution Bench of the Supreme Court in Supreme Court Advocates-on-
Record Association Vs. Union of India (1993) by 7-2 majority overruled the decision in SP
Gupta’s Case 9 , a late 1980’s case where a Supreme Court Constitution Bench held that
‘consultation’ does not mean ‘concurrence’ and ruled further that the concept of primacy of the
Chief Justice of India is not really to be found in the Constitution.

Judgement

Thus on the question of primacy the court concludes that the role of Chief Justice of India in the
matter of appointment of the Judges of the Supreme Court is unique, singular and primal, but
participatory vis-a-vis the executive on a level of togetherness and mutuality, and neither he nor
the executive can push through an appointment in derogation of the wishes of the other.

In this judgement, the majority consisting of Justices JS Verma, Yogeshwar Dayal, GN Ray, Dr.
AS Anand and SP Bharucha with concurring separate judgements delivered by S. Pandian and
Kuldip Singh, JJ, held that view in SP Gupta’s case insofar as the issue of “primacy” is concerned
is overruled.

The minority consisting of Ahmadi and Punchhi, held that the executive had primacy over the
opinion of the Chief Justice of India while on the matter of the fixation of judge strength, Punchhi
did not express a view, Ahmadi, J concurred with Venkataramaiah, J in SP Gupta’s case allowing
a limited mandamus to the issue.

9
S.P. Gupta vs. Union of India

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In re presidential Reference under article 143(1) of the constitution of India on principle and
procedure regarding appointment of supreme court and high court judges vs unknown10

In Re Principles and Procedure regarding appointment of Supreme Court and High Court Judges
1998 17 (AIR 1999 SC 1). In Advocates-on- Record Association vs. Union of India (1994 (4) SCC
441 = AIR 1994 SC 268),

The Supreme Court had laid down the procedural norms for appointment of Judges of Supreme
Court and High Court.

The decision was rendered by 9 Judges bench and five judgments were delivered.

As doubts arose about the interpretation of the law laid down by the Supreme Court in the above
mentioned case, the President made a reference to the Supreme Court under Article 143(1) of the
Constitution seeking clarification on certain points.

Nine questions were referred to the Court for advisory opinion and these questions pertained to
following three main points:-

(i) Consultation between the Chief Justice of India and other Judges in the matter of appointment
of the Supreme Court and the High Court Judges;

(ii) Transfer of High Court Judges and judicial review thereof; and

(iii) The relevance of seniority in making appointments to the Supreme Court.

The following question were referred for the opinion of supreme court:-

“(1) Whether the expression "consultation with the Chief Justice of India" in articles 217(1) and
222(1) requires consultation with a plurality of Judges in the formation of the opinion of the Chief
Justice of India or does the sole individual opinion of the Chief Justice of India constitute
consultation within the meaning of the said articles;

10
17(1998) 7 SCC 739: 1998 (5) SCALE 36: RLW 1999 (1) SC 168

14
(2) Whether the transfer of judges is judicially reviewable in the light of the observation of the
Supreme Court in the aforesaid judgment that "such transfer is not justiciable on any ground" and
its further observation mat limited judicial review is available in matters of transfer, and the extent
and scope of judicial review;

(3) Whether article 124(2) as interpreted in the said judgment requires the Chief Justice of India
to consult only the two senior most Judges or whether there should be wider consultation according
to past practice;

(4) Whether the Chief Justice of India is entitled to act solely in his individual capacity, without
consultation with other Judges of the Supreme Court in respect of all materials and information
conveyed by the Government of India for non-appointment of a judge recommended for
appointment;

(5) Whether the requirement of consultation by the Chief Justice of India with his colleagues, who
are likely to be conversant with the affairs of the concerned High Court refers to only those Judges
who have that High Court as a parent High Court and excludes Judges who had occupied the office
of a Judge or Chief Justice of that Court on transfer from their parent or any other Court;

(6) Whether in light of the legitimate expectations of senior Judges of the High Court in regard to
their appointment to the Supreme Court referred to in the said judgment, the 'strong cogent reason'
required to justify the departure from the order of the seniority has to be recorded in respect of
each such senior Judge, who is overlooked, while making recommendation of a Judge junior to
him or her;

(7) Whether the government is not entitled to require that the opinions of the other consulted Judges
be in writing in accordance with the aforesaid Supreme Court judgment and that the same be
transmitted to the Government of India by the Chief Justice of India along with his views;

(8) Whether the Chief Justice of India is not obliged to comply with the norms and the requirement
of the consultation process in making his recommendation to the Government of India;

(9) Whether any recommendations made by the Chief Justice of India without complying with the
norms and consultation process are binding upon the Government of India?”

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The supreme court answered the reference in following manner :

“The questions posed by the Reference are now answered, but we should emphasise that the
answers should be read in conjunction with the body of this opinion:

1. The expression "consultation with the Chief justice of India" in Articles 217(1) and 222(1) of
the Constitution of India requires consultation with a plurality of Judges in the formation of the
opinion of the Chief Justice of India. The sole, individual opinion of the Chief Justice of India does
not constitute "consultation" within the meaning of the said Articles.

2. The transfer of puisne Judges is judicially reviewable only to this extent: that the
recommendation that has been made by the Chief Justice of India in this behalf has not been made
in consultation with the four senior most puisne Judges of the Supreme Court and/or that the views
of the Chief Justice of the High Court from which the transfer is to be effected and of the Chief
Justice of the High Court to which the transfer is to be effected have not been obtained.

3. The Chief Justice of India must make a recommendation to appoint a Judge of the Supreme
Court and to transfer a Chief Justice or puisne Judge of a High Court in consultation with the four
seniormost puisne Judges of the Supreme Court. Insofar as an appointment to the High Court is
concerned, the recommendation must be made in consultation with the two seniormost puisne
Judges of the Supreme Court.

4. The Chief Justice of India is not entitled to act solely in his individual capacity, without
consultation with other Judges of the Supreme Court, in respect of materials and information
conveyed by the Government of India for non-appointment of a judge recommended for
appointment.

5. The requirement of consultation by the Chief Justice of India with his colleagues who are likely
to be conversant with the affairs of the concerned High Court does not refer only to those Judges
who have that High Court as a parent High Court. It does not exclude Judges who have occupied
the office of a Judge or Chief Justice of that High Court on transfer.

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6. "Strong cogent reasons" do not have to be recorded as justification for a departure from the order
of seniority, in respect of each senior Judge who has been passed over. What has to be recorded is
the positive reason for the recommendation.

7. The views of the Judges consulted should be in writing and should be conveyed to the
Government of India by the Chief Justice of India along with his views to the extent set out in the
body of this opinion.

8. The Chief Justice of India is obliged to comply with the norms and the requirement of the
consultation process, as afforested, in making his recommendations to the Government of India.

9. Recommendations made by the Chief Justice of India without complying with the norms and
requirements of the consultation process, as afforested, are not binding upon the Government of
India.”

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 CONCLUSION

The law ministry has quoted Justice J Chelameswar’s dissenting judgment in the NJAC case in its
second letter to the chief justice of India regarding the collegium’s proposal to elevate Uttarakhand
chief justice KM Joseph to the Supreme Court.

“The intent behind the confidential communication is to bring in transparency in appointment of

judges, as also pointed out earlier by Justice J Chelameswar, focus on ‘Glasnost’ and ‘Perestroika’,
hold wider consultations to make the selection pro ..Perestroika’, hold wider consultations to make
the selection process democratic and participatory, and also desist from deviation, if any,” a law
ministry source said. On April 30, law minister Ravi Shankar Prasad wrote to the CJI, emphasising
on the principle of seniority in the selection of judges, after his April 26 letter which said that.
justice Joseph’s proposed appointment was not ‘appropriate’. Justice Chelameswar who had given
a dissenting verdict in the NJAC case had said “proceedings of the collegium were absolutely
opaque and inaccessible both to public and history”. He had stressed upon the need for
transparency in appointment of judges and also commented “primacy of judiciary” in the
appointment of judges was “empirically flawed. Transparency is a vital factor in constitutional
governance.

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 BIBLIOGRAPHY

BOOKS :-

THE CONSTITUTIONAL LAW OF INDIA, DR. J N PANDEY, 46TH EDITION

THE CONSTITUTION OF INDIA, V N SHUKLA, 13TH EDITION, 2015

BARE ACT OF THE CONSTITUTION OF INDIA, COMERCIAL LAW PUBLICATION

WEBSITES:-

WWW.INDIANKANOON.COM

WWW.INDIANLEGALSERVICES.COM

WWW.ACADEMIA.COM

WWW.ADVOCATEKHOJ.COM

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