In Re Presidential Reference: The Third Judge Case 1988

Introduction 

The Special Reference No. 1 of 1998, Re, (1998) 7 SCC 7391, famously known as The Third  Judges Case, is the landmark Supreme Court judgement that fundamentally changed the  structure of judge appointments to the higher judiciary. This matter, which arose from a  Presidential Reference under Article 1432of the Constitution, addressed key constitutional  ambiguities left unresolved by earlier rulings (the First and Second Judges Cases) pertaining to  the literal meaning and scope of “consultation” in the appointment and transfer of Supreme  Court and High Court judges. 

In answer to then President K.R. Narayanan’s questions, a nine-judge bench stated that  “consultation” with the Chief Justice of India requires an overall view of a collegium  comprising the Chief Justice and the Supreme Court’s four senior-most judges. The decision  emphasised the appointment process’s participatory and collective nature, reaffirmed the  significance of judicial input over executive authority, and established the Collegium System  as the foundation of India’s judicial independence. Although given as an advisory opinion under  Article 143, the Supreme Court’s interpretation has been determined as binding precedent,  shaping new judicial appointments and transfer procedures over the years. 

Therefore, we will apply the IRAC method to an analysis of the Third Judges Case in this paper.  It will identify the main issues that the Court addressed, discuss how the rules (legal principles  and constitutional provisions) were applied to the case’s facts and the context and then draw a  well-supported conclusion pertaining to the case’s long-term effects on India’s judicial  appointment system. 

Issue 

The key issue in “In Re: Presidential Reference (Third Judges Case)” is what “consultation”  means and how it is used in respect to the appointment and transfer of Supreme Court and High  Court judges, as specified by Articles 124, 217, and 222 of the Indian Constitution. The  ambiguity left by previous rulings (First and Second Judges cases) regarding the importance of  the Chief Justice’s recommendations and the executive’s involvement with judicial selections  caused this topic to draw attention. 

⮚ The issues highlighted were: 

∙ What is the proper procedure for consulting on judicial appointments under Articles 124(2),  217(1), and 222? 

∙ Does “consultation” require the President to comply with the opinion of the Chief Justice  of India or the Collegium?  

∙ Who constitutes the Collegium, and how does its view impact appointments and transfer? 

The President of India, using his authority under Article 143, brought these questions to the  Supreme Court of India for an advisory opinion, hoping to safeguard the court from presidential  overreach while ensuring a participatory consultation process.  

III. Rules

Relevant Constitutional Provisions 

1. Article 124(2): Every Judge of the Supreme Court shall be appointed by the President by  warrant under his hand and seal after consultation with such of the Judges of the Supreme  Court and of the High Courts in the States as the President may deem necessary for that  purpose and shall hold office until he attains the age of sixty-five years3. 
2. Article 217(1): Addresses appointments to the High Court and includes “consultation” with  the Chief Justice of that High Court, the Governor of the State, and the Chief Justice of  India4.  
3. Article 222: Regarding the transfer of judges between High Courts5. 

Judicial Precedents  

1. First Judges Case (S.P. Gupta v Union of India, 1981): declared “consultation” to be  non-binding, meaning the president was not required to follow the court’s advice6. 
2. The Supreme Court Advocates-on-Record Association v. Union of India, 1993, Second  Judges Case: This case overturned the First Judges Case by ruling that “consultation”  meant “concurrence”; as a result, the Judiciary (CJI and two most senior judges) was  given preference when it came to suggestions7. 
3. Third Judges Case (1998): In response to the Presidential Reference, the Supreme Court  clarified and expanded the Collegium System. Only when the majority of the Collegium  concurs may appointments and transfers be suggested to the President; the appointment  of SC judges needs consultation with the four most senior judges in along with the Chief  Justice of India. The executive has to comply with the Collegium’s suggestion if it is  reinforced in spite of executive disagreement8. 

Application 

The Supreme Court was compelled to align constitutional language with tradition and practice  when the President exercised his authority under Article 1439to clarify what “consultation” in  judicial nominations meant. Determining how Articles 124(2), 217(1), and 222 should be used  to maintain judicial independence while limiting executive control and power concentration in  a single judicial authority was the primary task. 

Article 124(2)10 was applied fundamentally by the Court. It pointed out that previous  interpretations had gone between two extremes: the Second Judges Case had elevated the Chief  Justice’s concurrence to binding authority, while the First Judges Case had reduced consultation  to a mere formality, placing the executive above all else. Both strategies had challenges; the  one reduced judicial independence, while the second raised concerns about individual bias and  over-centralization. This resolved itself in the Third Judges Case by defining “consultation” as  an institutional and multiple procedure. The ruling mandated that the Chief Justice of India  contact the four most senior Supreme Court judges before making decisions about  appointments to the highest court, rather than the President functioning alone or the Chief  Justice acting arbitrarily. This leads to transforming the procedure into collective deliberation, shared responsibility, and reinforcing transparency11. 

A similar idea was extended to Article 217(1)12, which deals with appointments to the High  Court. The Court clarified the functions of the Governor of the State, the Chief Justice of India, and the Chief Justice of the High Court, even though the constitutional text requires  consultation with all three. It concluded that the Chief Justice of India, acting through the  expanded Collegium rather than acting alone, has the highest authority, even though the  Governor and the Chief Justice of the High Court must be meaningfully consulted. This  acknowledged the federal framework for appointments while ensuring the national judiciary  had the final say. By using this reasoning, conflicting assertions of judicial independence and  state involvement were justified. 

Transfers of judges, governed by Article 22213, raised another difficulty. Historically, transfers  had been used as instruments of pressure, threatening the security of tenure essential to judicial  independence. Applying the same interpretive lens, the Court ruled that transfers could not be  made arbitrarily by the executive. Instead, they had to be recommended within the Collegium,  thereby insulating individual judges from political reprisals. In this way, the Court converted  what could have been an executive weapon into a carefully scrutinised institutional process14. 

The Court also considered the Collegium’s recommendation’s binding nature. A Collegium  recommendation might be reconsidered by the President, acting on ministerial advice, but the  President was bound by the Constitution to accept it if the Collegium reaffirmed its ruling. This  system prevented presidential override and permitted a real dialogue between the executive  and the judiciary. The striking balance reaffirmed the concept of constitutional dialogue: the  judiciary’s collective wisdom ultimately prevailed over, even though the administration might  express concerns or objections15. 

In elucidating the definition of “consultation,” the Court likewise carefully considered earlier  rulings. By increasing the number of decision-makers from the Chief Justice plus two senior  judges to the Chief Justice plus four senior judges, it strengthened on the Second Judges Case’s  conclusion that “consultation” equates to judicial primacy. This modification reduced the  possibility of subjectivity or arbitrariness while ensuring wider institutional engagement. The  Court acknowledged that presidential control over appointments had, in reality, undermined  judicial independence and credibility, but it also made a clear distinction from the First Judges  Case16. 

The Basic structure doctrine became the foundation for the Court’s interpretive decisions17.  Incorrect interpretations of “consultation” could not jeopardise judicial independence, which  has always been upheld as a fundamental component of the Constitution. The Court reinforced  the constitutional guarantee that the higher courts must be immune from governmental  meddling by giving the judiciary significant, albeit not total, precedence through the  Collegium. Every clause whether pertaining to transfers, High Court elevation, or appointments was construed in the context of this broader idea18.  

A consistent procedure was established by the ultimate application of these principles: transfers  and appointments were to result from a collegial decision rather than from a single person’s  discretion. By having the authority to request reconsideration, the President held a restricted  but valid role. However, the final decision maker were the judges, expressed not through one  individual (CJI) but through a collective institution called Collegium19.Thus, the Court’s  application reconciled the provisions of Articles 124, 217, and 222 with the actual problems  arising from previous practices. By articulating the Collegium system, it gave not just a  procedural roadmap but also a constitutional safeguard. The term “consultation” therefore  evolved from ambiguity to an understanding of participatory supremacy of the courts,  balancing institutional principles against political temptations and bringing judicial  independence into the actual implementation of the Constitution20. 

Judgement 

The Third Judges Case established itself as a constitutional milestone by definitively resolving the ambiguity surrounding the phrase “consultation” under Articles 124(2), 217(1), and 222  of the Indian Constitution. By making consultation a democratic, institutional, and binding  procedure, the Court struck an equilibrium between judicial independence and limited  administrative participation. The Court’s reasoning reflected not just a resolution of textual  confusion, but also a broader constitutional vision based on the basic structure doctrine that the  independence of the judiciary is critical to the operation of India’s democracy. 

Additionally, the advisory opinion issued under Article 143 was given binding value in  actuality, influencing the constitutional framework that today controls the higher courts.  Although advisory opinions are not legally binding, the fact that this judgment has been  generally accepted emphasises its normative significance. This demonstrates the Supreme  Court’s distinct constitutional role in filling interpretation gaps and creating traditions where  the text is silent or ambiguous. 

The independence of the judiciary is an important aspect of the Indian Constitution, as  reaffirmed by the Supreme Court in several cases. Furthermore, it has made it clear that any  attempt to undermine its independence, whether directly or indirectly, by a constitutional  modification will be denied. The Three Judges cases, decided in 1981, 1993, and 1998, helped to focus upon the importance of judicial independence. The 2015 verdict upheld the status quo  while allowing for opinions on how to improve the collegium of judges’ functioning. The Third  Judges Case attitude remains in place, indicating the Indian court’s continuous commitment to  upholding its independence.

Reference(S):

1 Special Reference No. 1 of 1998, (1998) 7 SCC 739 

2 Constitution of India, art 143

 3 Constitution of India 1950, art 124(2). 

4 Constitution of India 1950, art 217(1). 

5 Constitution of India 1950, art 222. 

6 S.P. Gupta v Union of India AIR 1982 SC 149. 

7 Supreme Court Advocates-on-Record Association v Union of India (1993) 4 SCC 441. 8In re Special Reference No 1 of 1998 (1998) 7 SCC 739.

9 Constitution of India 1950, art 143. 

10 Constitution of India 1950, art 124(2). 

11 Supreme Court Advocates-on-Record Association v Union of India (1993) 4 SCC 441.

12Constitution of India 1950, art 217(1).

13 Constitution of India 1950, art 222. 

14 In re Special Reference No 1 of 1998 (1998) 7 SCC 739). 

15 In re Special Reference No 1 of 1998 (1998) 7 SCC 739, para 108. 

16 SP Gupta v Union of India AIR 1982 SC 149. 

17 Kesavananda Bharati v State of Kerala (1973) 4 SCC 225. 

18 In re Special Reference No 1 of 1998 (1998) 7 SCC 739.

19In re Special Reference No 1 of 1998 (1998) 7 SCC 739. 

20 In re Special Reference No 1 of 1998 (1998) 7 SCC 739.