Supreme Court Advocates-on-Record Association v Union of India (1993 & 2015)

Constitutional Law II · The Judiciary

Facts.

The scope of the President’s power to appoint judges “after consultation with” the Chief Justice was in dispute (1993). Later (2015), Parliament created the National Judicial Appointments Commission by the 99th Amendment, and it was challenged.

Issue.

Does the executive or the judiciary have the final say in appointing and transferring judges?

Held.

In 1993 the Court held that “consultation” means the primacy of the CJI’s opinion, exercised through a collegium of senior judges. In 2015 it struck down the NJAC as violating the basic structure, restoring the collegium.

Why it matters.

It settles that judges have the primary role in choosing judges — the constitutional safeguard behind judicial independence, and the answer key to “appointment without consulting the CJI” problems.

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