Second Judges case

Also called: Supreme Court Advocates-on-Record Association v. Union of India (1993) · Topic: Judiciary: Independence, Structure, Judicial Review and Activism · NCERT: Class 11, Ch 6 "Judiciary"

Meaning

The Second Judges case (Supreme Court Advocates-on-Record Association (SCAORA) v. Union of India) is the nine-judge Supreme Court judgment of 6 October 1993 [2]. It held that the Chief Justice of India (CJI) has primacy (the final and heaviest say) in appointing judges. The CJI must form that opinion together with the two senior-most Supreme Court judges, and this is how the collegium system began.

It matters because it moved control over choosing judges from the government to the judiciary. Today's system, where judges choose judges, still comes from this case.

Explanation

Background: why the case came up

• Art. 124(2) says the President must "consult" the CJI before appointing a Supreme Court judge. Art. 217(1) says the same for High Court judges.
• First Judges case, S.P. Gupta v. Union of India (December 1981):
• It held that "consultation" does not mean "concurrence" (agreement).
• This meant the President, acting on the government's advice, could reject the CJI's view.

• So the executive (the government) had the upper hand in appointments and transfers.

• Past misuse made people worried:

• In April 1973, A.N. Ray was made CJI over three senior judges: J.M. Shelat, K.S. Hegde and A.N. Grover.
• In January 1977, M.H. Beg was made CJI over H.R. Khanna.
• In both cases, the judges who were passed over had ruled against the government. This showed the risk of a committed judiciary (judges picked because they share the ruling party's views).

What the Court held in 1993

• It overruled S.P. Gupta. The judiciary's role changed from consultative (only giving advice) to binding (its advice must be followed).
• The CJI has primacy. When the CJI and the government disagree, the CJI's opinion counts most.
• The CJI does not decide alone. The CJI's opinion must be formed with the two senior-most judges of the Supreme Court. This small group is the first collegium (a group of senior judges who decide together).
• Seniority decides who becomes CJI. The senior-most Supreme Court judge should be appointed CJI. This turned the old seniority convention (a custom, not written in Art. 124) into a firm rule.

Limits and later changes

• The word "collegium" is not in the Constitution. It comes from the Judges cases and the memorandum of procedure. The text of Art. 124 and Art. 217 did not change.
• The President still makes the formal appointment. The Court changed only whose opinion carries more weight.
• The 1993 rules left questions open. How many judges should be consulted? Should their views be in writing? These questions led to the Third Judges case (In re Special Reference No. 1 of 1998, 28 October 1998) [2].
• The 1998 opinion widened the collegium:
• For Supreme Court appointments, the CJI plus the 4 senior-most judges. PRS describes this as the 1993 rule being "slightly modified" from two judges to four [3].
• For High Court appointments and transfers, the CJI plus the 2 senior-most judges.

In the Constitution and practice

• Constitutional base:
• Art. 124(2): appointment of Supreme Court judges. Consulting the CJI is compulsory for puisne judges (Supreme Court judges other than the CJI).
• Art. 217(1): appointment of High Court judges, after consulting the CJI, the Governor and the High Court Chief Justice.

• Art. 222: transfer of High Court judges after consulting the CJI.

• Legislature has no role. Parliament does not vote on or confirm judges. The 1993 judgment kept the choice between the judiciary and the executive.

• The three Judges cases at a glance:

Case	Year	Who had the upper hand
S.P. Gupta (First)	1981	Executive
SCAORA (Second)	6 October 1993 [2]	Judiciary (CJI + 2 judges)
Special Reference No. 1 of 1998 (Third, under Art. 143)	28 October 1998 [2]	Collegium (CJI + 4 for SC)

• Memorandum of procedure (MoP): this is the government's written rulebook for appointing judges. It was prepared in 1998 on the basis of the Second Judges case judgment and the Third Judges case opinion [2].
• Under it, the outgoing CJI recommends the senior-most judge as successor.

• The senior-most judge has been made CJI every time since 1977.

• How it works today:

• Only names recommended by the Supreme Court collegium are appointed as High Court judges [2].

• 608 High Court judges were appointed in the five years before July 2026 [2].

• Challenge and survival:

• The Constitution (121st Amendment) Bill, 2014 and the NJAC Bill, 2014 tried to replace the collegium with a commission.
• In October 2015, a five-judge bench struck both down. It held that letting the executive into appointments harms judicial independence and the separation of powers (each organ of government keeping to its own role) [3].
• The collegium that began with the Second Judges case came back into force.

Don't confuse with

• First Judges case (S.P. Gupta, 1981): it said consultation ≠ concurrence and gave the executive primacy. The Second Judges case overruled it and gave the CJI primacy. S.P. Gupta is also the landmark case on locus standi and PIL, but the Second Judges case is not.
• Third Judges case (1998): this was an advisory opinion under Art. 143 on a President's reference, not a regular case between two sides. It widened the collegium to CJI + 4 for the Supreme Court. The Second Judges case had set CJI + 2.
• Sankalchand Sheth (1977): this case is about transfers under Art. 222. It held that a judge's consent is not needed and that the consultation must be real and effective. It did not give the CJI primacy.
• NJAC (2014): this was a law and an amendment passed by Parliament to replace the collegium, and the Court struck it down in 2015 [3]. The collegium was created by judges' rulings, not by Parliament.

Prelims Hooks

• SCAORA v. Union of India: decided on 6 October 1993 [2] by a nine-judge bench. It is the Second Judges case and the origin of the collegium.
• Second Judges case: the CJI's opinion has primacy but must be formed with the 2 senior-most judges. Third Judges case: CJI + 4 for the Supreme Court, and CJI + 2 for High Courts.
• Trap: "The collegium system is provided in Art. 124." This is wrong. The word "collegium" appears nowhere in the Constitution.
• Case–principle pairs: S.P. Gupta (1981) means executive primacy, because consultation ≠ concurrence. SCAORA (1993) means judicial primacy.
• Seniority rule: the 1993 judgment held that seniority should decide who becomes CJI. This came after the supersessions of 1973 (A.N. Ray) and 1977 (M.H. Beg).
• MoP (1998): it is based on the Second Judges case judgment and the Third Judges case opinion [2].

Mains Points

• Independence vs accountability:
• For the 1993 ruling: the 1973 and 1977 supersessions and the "committed judiciary" idea showed the danger of letting the executive have primacy. The Second Judges case shielded appointments from political pressure.

• Against it: the collegium it created is opaque. It gives few reasons and has no fixed criteria. Reform bodies proposed a judicial appointments commission in 1987, 2002, 2005 and 2007 [3].

• Judges reading "consultation" as "concurrence":

• Critics say the Court gave itself a power that the text of Art. 124 does not plainly give.
• Supporters say judicial independence is part of the Constitution's core, so the reading protects the Constitution's purpose.

• The NJAC judgment of 2015 upheld primacy for judges [3].

• Way forward: keep the core of the 1993 ruling, which is judicial primacy. Reform how the collegium works:

• Use written criteria and record reasons.
• Use a revised MoP with fixed time limits. For example, the rule that a High Court collegium must recommend names at least 6 months before a vacancy is rarely met [2].
• Draw judges from a wider pool.
• Do not return to control by the executive.

Related concepts

• Appointment of judges
• Committed judiciary
• Supersession of judges
• First Judges case
• Third Judges case
• Collegium system
• Transfer of High Court judges

Read more

• Appointing judges I: seniority, supersessions and the three Judges cases