Third Judges case

Also called: In re Special Reference No. 1 of 1998, Special Reference No. 1 of 1998 · Topic: Judiciary: Independence, Structure, Judicial Review and Activism · NCERT: Class 11, Ch 6 "Judiciary"

Meaning

The Third Judges case (In re Special Reference No. 1 of 1998) is the Supreme Court's advisory opinion of 28 October 1998 under Article 143 [2]. The President had asked the Court about the process for appointing judges. The Court ruled that the Chief Justice of India (CJI) must recommend Supreme Court judges together with the 4 senior-most judges, and High Court judges together with the 2 senior-most judges. Every member must give their views in writing.

It matters because it fixed the size and working rules of today's collegium system (a group of senior judges who choose judges). It is also the base of the 1998 memorandum of procedure that governs appointments even now [2].

Explanation

Background: how the Court got here

• First Judges case, S.P. Gupta v. Union of India (December 1981):
• The Court said 'consultation' does not mean 'concurrence' (agreement).

• So the President could disagree with the CJI. The executive had the upper hand.

• Second Judges case, SCAORA v. Union of India (6 October 1993, 9 judges) [2]:

• It overruled S.P. Gupta.
• The CJI's opinion got primacy (it carries the most weight). But the CJI had to form it with the 2 senior-most judges.

• This is where the collegium was born.

• Third Judges case (28 October 1998) [2]:

• It did not come from a dispute between two sides. The President made a reference under Art. 143, asking the Court for its opinion on how the 1993 judgment should work.

• The Court's answer widened the collegium and set written rules.

• The overall shift: the judiciary's role went from consultative (asked for advice) to binding (its advice must be followed) to collegial (decided by a group of senior judges).

The rules it laid down

• Collegium for Supreme Court appointments: the CJI plus the 4 senior-most judges.

• PRS describes this as the 1993 ruling being "slightly modified", from two judges to four [3].

• Collegium for High Court appointments and transfers: the CJI plus the 2 senior-most judges.

• Views in writing: each member must record their opinion in writing. The CJI cannot decide alone.
• Two-member objection: if two collegium members object to a name, the name should not go forward.
• Return once, then bound:
• The government may return a name once and ask the collegium to think again.
• If the collegium reiterates the name (sends the same name again), the government must appoint that person.

How the collegium works under these rules

• Supreme Court judges: 1. The CJI starts the proposal after consulting the 4 senior-most puisne judges (Supreme Court judges other than the CJI). 2. The CJI sends the recommendation to the Union Law Minister [2]. 3. The file then goes to the Prime Minister and finally to the President, who makes the appointment.

• High Court judges, step by step: 1. The High Court collegium (the High Court's Chief Justice plus its 2 senior-most puisne judges) recommends names at least 6 months before a vacancy arises. This time limit is "rarely observed" [2]. 2. The state government and Governor give their views [2]. 3. The Centre adds Intelligence Bureau (IB) reports and any other reports it has [2]. 4. The Supreme Court collegium (CJI + 2) considers all these views [2]. It also consults Supreme Court judges who know that High Court well. 5. The file goes to the Law Ministry, then the PM, then the President. 6. Only names recommended by the Supreme Court collegium are appointed [2].

Limits

• The word "collegium" does not appear in the Constitution. The system comes only from the Judges cases and the 1998 MoP.
• It was an advisory opinion under Art. 143. It was not a judgment in a case between two parties. Even so, it has been followed in practice ever since.
• The rule that the government is "bound" after a reiteration has no time limit. When the government holds back a file, the rule is weakened in practice.

In the Constitution and practice

• Art. 124(2): the President appoints Supreme Court judges. Consulting the CJI is compulsory for every judge other than the CJI.
• Art. 217(1): for High Court judges, the President consults the CJI, the Governor and the High Court Chief Justice. Art. 224 covers additional and acting judges [2].
• Art. 222: the President transfers High Court judges after consulting the CJI. In practice, the CJI acts with the collegium.

• Sankalchand Sheth (1977): the judge's consent is not needed, but the consultation must be real and effective.

• Art. 143 (advisory jurisdiction): the President may ask the Supreme Court for its opinion on a question of law. The 1998 reference was made under this power.

• Memorandum of procedure (MoP), 1998: the government's written rulebook for appointments. It was drawn up from the 6 October 1993 judgment and the 28 October 1998 opinion [2].
• Seniority convention: since 1977, the senior-most judge has always become CJI. Under the MoP, the outgoing CJI recommends his successor.

• Before that, the government twice broke this custom. A.N. Ray was made CJI in April 1973 over Shelat, Hegde and Grover. M.H. Beg was made CJI in January 1977 over H.R. Khanna.

• Challenge from the NJAC:

• Parliament passed the 121st Amendment Bill and the NJAC Bill in August 2014 [4].
• A five-judge bench struck both down in October 2015. It held that executive involvement in appointments harms judicial independence and breaks the separation of powers [3].

• As a result, the collegium described in the Third Judges case came back into force.

• Scale today: in the five years before July 2026, 608 High Court judges were appointed through this system [2].

Don't confuse with

• Second Judges case (SCAORA, 1993): a judgment by a 9-judge bench. Its collegium was the CJI + 2. The Third Judges case (1998) was an Art. 143 advisory opinion that widened the Supreme Court collegium to CJI + 4.
• First Judges case (S.P. Gupta, 1981): gave primacy to the executive (consultation ≠ concurrence). It is also the landmark case on locus standi and PIL. The Third Judges case strengthened judicial primacy.
• High Court collegium vs Supreme Court collegium for High Court appointments: the High Court collegium is the High Court Chief Justice + 2 and only starts the proposal. The Supreme Court collegium (CJI + 2) makes the final recommendation.
• NJAC (2014): a body set up by a constitutional amendment, including the Law Minister and 2 eminent persons. Any 2 members could block a name [4]. It was struck down in October 2015 [3]. The collegium has no constitutional text behind it.

Prelims Hooks

• Third Judges case: 28 October 1998 [2]. It was an advisory opinion under Art. 143, not a judgment on a writ petition.
• Collegium size: CJI + 4 senior-most judges for Supreme Court appointments. CJI + 2 senior-most judges for High Court appointments and transfers.
• Trap: "The collegium is mentioned in Art. 124." This is false. The word appears nowhere in the Constitution.
• Rules: views must be in writing. If 2 members object, the name should not go forward. The government can return a name once. If the collegium reiterates it, the government must appoint.
• Sequence: S.P. Gupta (1981, executive) → SCAORA (1993, CJI + 2) → Special Reference (1998, CJI + 4) → MoP (1998) [2] → NJAC struck down (2015) [3].
• MoP: the High Court collegium must recommend names at least 6 months before a vacancy [2].

Mains Points

• Independence vs accountability:
• For the collegium: the 1973 and 1977 supersessions and the "committed judiciary" idea show the danger when the executive has the upper hand. The 1998 opinion's written, multi-judge process guards against this.

• Against the collegium: it is opaque. It gives few reasons and has no fixed criteria. This is why reform bodies proposed appointment commissions in 1987, 2002, 2005 and 2007 [3].

• Delays and friction:

• The 6-month advance timeline is rarely met [2].
• The government can sit on reiterated names, so the "return once, then bound" rule is weak in practice.

• Reform: a revised MoP with fixed time limits for each step.

• After the NJAC ruling (2015): the Court kept judicial primacy [3], but the case for openness, written criteria and a wider pool of candidates remains. The better middle path is a reformed collegium, not a return to executive control.

Related concepts

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

Read more

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