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In re Special Reference No. 1 of 1998

In re Special Reference No. 1 of 1998

Citation: AIR 1999 SC 1

Court: Supreme Court of India

Facts of the case: In 1998, a presidential reference was made to the Supreme Court by the then President K. R. Narayanan on issues arising out of the Second Judges Case.  The Attorney general of India made it clear that they are not seeking any reconsideration or review of the verdict in Second Judges case. The case was a reference under Article 143 opf the constitution regarding the collegium system and its functioning. Nine questions were formulated for the purpose of clarification.

Issue: The nine questions that were referred to the court are regarding  whether the consultation with the CJI  refers to the CJI and puisine judges /the CJI alone; Inquiry regarding judicial review of transfers of judges  and; the relevance of seniority in making appointments to the Supreme Court.

Judgment: The nine-judge bench headed Justice S. P. Bharucha unanimously upheld the major premise of Second judges’ case. The question put forth by the president was if the term “consultation” requires the consultation with a number of judges in forming the CJI’s opinion or whether the sole opinion of the CJI would be sufficient. In reply to the question, the Supreme Court stated that the expression “consultation with the Chief Justice of India”  in the constitution requires the consultation with the plurality of judges. It was observed that the sole opinion of the chief Justice would not amount to “consultation” under the articles.

This case played a major role in developing the collegium system as it is in existence today. It stated that the Collegium system would consists of CJI and four most senior most judges of the Supreme Court. The transfer, as well as the appointment  would be questioned or judicially reviewable to the extent that the recommendation was made in consultation with the collegium system a whole.

On the subject of departing from the order of seniority, it was noted that strong cogent reasons need not be recorded as a justification. Instead, the positive reason for recommendation is to be mentioned. Also, the views of the other judges who were consulted for making the decision is to be recorded in writing and conveyed to the Government of India by the Chief Justice along with his opinions. If the guidelines enumerated under this judgment are not followed, the recommendations made by the Chief Justice of India would not be binding on the Government of India.

The Third Judges Case gave clear guidelines regarding the subject of appointment and transfer of judges, but it has been criticized for the being an informal and closed-door affair. The objective to make the collegium was to ensure the independence of the judiciary but it has been questioned for the lack of accountability and outliving its utility.