Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years.
The Chief Justice of India used to initially begin the proposal for appointments with consultation with fellow senior colleagues and this recommendation was considered by the President and once agreed the appointment was made.
However since the President is merely a rubber stamp and constitutional head and acts upon the advice and aid of the council of ministers thus it was considered necessary for the proposal to be primarily accepted by the government first an thus there seemed to be some sort of a balance between the executive and judiciary.
In the S.P. Gupta vs. Union of India, in a majority judgement it was held by the Supreme Court that the concept regarding the primacy of the Chief Justice is not found anywhere in the Constitution.
It was also held that the proposal regarding the appointment of the judges of the High Court can source from any of the functionaries that are mentioned in Article 217 of the Constitution and not necessarily the Chief Justice of the High Court. These are –
Governor of State, Chief Justice of India, Chief Justice of High Court
The Supreme Court has also held that Consultation is not concurrence. This means that though president will consult these functionaries yet his decision is not to be a concurrence of all of them. This further implied that if President wished to do so, he / she could appoint without agreeing to any of these.
Thus, the balance of power in appointments of judges of the High Courts tilted in the favor of the executive because now the executive could consult with the governor or any other functionary among the above and appoint the judges. The office of the Supreme Court of India got diminished in its importance in this matter.
This S P Gupta case is known as the “First Judges Case”.