In this article, the researcher will look at the contested convention that came up before the Supreme Court in Supreme Court advocates-on-record association v. Union of India[i] (hereinafter referred as Second Judges case) and will argue that the opinion of Justice Singh is justified according to Article 124(2) and Article 217(1) of the Constitution. However, the researcher will delve deeper into the study of constitutional conventions and will argue, that while arriving at his opinion, the reasoning employed by Justice Singh is flawed in nature.
From the commencement of the Constitution of India, judges of the Supreme Court and High Courts were appointed following the procedure provided under Article 124(2) and Article 217(1) of the Constitution of India. The appointments were made by the President after consulting with the Chief Justice of India (CJI) and other judges as he may deem necessary. However, with the passage of time, the meaning of the word “consultation” mentioned in Article 124(2) and Article 217(1), became a contentious issue. After some of the senior judges were superseded in the appointment of CJI during the 1970s, there was a perception that independence of the judiciary was under threat. Questions were raised regarding the role of executive in the appointment and transfer process of Supreme Court and High Courts judges. All this resulted in the series of cases over the years.
In S.P Gupta v Union of India[ii], Supreme Court held that the meaning of the term ‘consultation’ cannot be expanded to ‘concurrence’ and ruled that the executive has primacy over the judiciary in the appointment of judges. However, later in the Second Judges case, the court overturned S.P. Gupta judgement.
BACKGROUND
The Second Judges case was filed as a writ petition in the Supreme Court. This writ petition brought into reconsideration the controversial judgement of S.P. Gupta case. Primarily, the issues, in this case, were regarding the primacy of the opinion of CJI in the appointments of High Courts and Supreme Court judges. Petitioners argued that the interference of the executive in judiciary’s domain must be minimised and thus CJI’s recommendation should not be ignored. The bench delivered the judgement with a majority of 7:2. The majority opinion held that primacy must be given to the recommendation of CJI’s opinion formed after taking into consideration, the opinion of the two seniors most judges of the Supreme Court. The court also expanded meaning of the word ‘consultation’ by equating it with ‘concurrence’.
The contested convention in the case was the role of the judiciary in the appointment process. The question was whether an established convention can be read in Article 124(2) and Article 217(1) of the constitution to the effect that judiciary has primacy over the executive in the appointment procedure of the judges of High Courts and Supreme Court.
CONSTITUTIONAL CONVENTIONS
Justice Singh had given majority but concurring opinion. He discussed the importance of constitutional convention and its enforceability at length. The concept was first introduced by Dicey in 1885, where he identified some unwritten rules in the Constitution and called them “the convention of the Constitution”. Convention can be said as the practices that fill up the lacunae in the text of the Constitution and helps in its interpretation. Dicey suggested that the purpose of conventions is to ensure that legal powers, which were formally in the hands of the Crown, in practice are exercised by authorities in accordance with the principles of a representative form of government.[iv] Given the importance of conventions, it becomes extremely important to recognize them. It is not necessary that, if a practice is happening for a long period, it is a convention. Also, it will threaten the spirit of the constitution, if the existence of a convention is taken for granted without conforming it to some rule. As conventions are fundamentally used to interpret the law, an incorrect convention would lead to wrong interpretation of the law. Therefore, some of the jurists like Sir Ivor Jennings, Sir A.V. Dicey have laid down tests to recognize them. In the present case, the court has adopted the test given by Sir Jennings.[v] His test poses three questions to determine conventions. “(a) What are the precedents? (b) Did actors in the precedent believe that they are bound by a rule? (c) Is there a reason for the rule?”
