Special Reference No. 1 of 1998 (Third Judges case)
Rule established
The Chief Justice of India must form his opinion in consultation with a collegium of the four senior-most Judges of the Supreme Court for appointments to that Court, and the two senior-most for appointments to and transfers from the High Courts. An opinion formed without such consultation is not binding on the Government.
Facts
- The Second Judges case had held that the opinion of the Chief Justice of India has primacy in appointments, and that it must be formed in consultation with his senior colleagues.
- Difficulties arose in practice as to how many colleagues had to be consulted, whether their views had to be recorded, and what the consequence was of a recommendation made without such consultation.
- Questions also arose about the weight to be given to the views of Judges of the High Court concerned, and about the role of the executive where it had material adverse to a candidate.
- The President accordingly referred a set of questions to the Supreme Court under Art.143(1) for its opinion.
- The reference was heard by a Bench of nine Judges.
Issue
- What is the composition of the collegium, what procedure must it follow, and what is the effect of an opinion of the Chief Justice formed without consulting it?
Held
- The Court answered the reference in detail. For an appointment to the Supreme Court, the Chief Justice must consult a collegium of the four senior-most Judges of the Court; if two of them disagree, the Chief Justice should not press the recommendation. For an appointment to a High Court, and for a transfer of a High Court Judge, the collegium consists of the Chief Justice and the two senior-most Judges of the Supreme Court, and in the case of a High Court appointment the views of the senior-most Judge of the Supreme Court who comes from that High Court, and of the Chief Justice and other Judges of that High Court, are to be obtained. Reasons must be recorded and the views of the consultees reduced to writing and forwarded to the Government. Where the Chief Justice acts without consulting the collegium, his recommendation is not binding and the Government is not obliged to act on it. Where the Government has material against a candidate it must place it before the collegium, whose reconsidered view then prevails.
Ratio Decidendi
Primacy of the judiciary is institutional, not personal. If the Chief Justice's individual view sufficed, the safeguard against executive influence would simply be replaced by the risk of one person's error or preference. Requiring a collegium of stated composition, recorded reasons and written views converts primacy into a collective and documented process, which is both a check within the judiciary and the means by which the executive's objections are properly considered.
How to use it in an exam
- The source of the numbers, which is what this case is most often asked for: four senior-most Judges for a Supreme Court appointment, two for a High Court appointment or transfer.
- Note the specific consequence that an opinion of the Chief Justice formed without the collegium is not binding. This is a favourite problem question fact pattern.
- Place it third in the sequence of Judges cases, between SC Advocates on Record Association v Union of India 1993 and SC Advocates on Record Association v Union of India 2015.
- Also useful as an illustration of the advisory jurisdiction under Art.143 being used to clarify a previous decision rather than to decide a dispute, alongside Special Reference No 1 of 1964 and In Re Kerala Education Bill 1958.
- Remember the procedural requirements of recorded reasons and written views, since the absence of them is a common criticism levelled at the collegium in practice.
Source
Source: (1998) 7 SCC 739; AIR 1999 SC 1; advisory opinion on a Presidential reference under Art.143; Bench of nine Judges; supplies the operational detail of the collegium; citation and bench checked against Indian Kanoon and reported sources, audit of 12 August 2026
This is an educational summary, not the judgment itself. Cite the reported version in professional or academic work.