The following is a response to Venkatesan’s earlier post titled ‘Supreme Court’s Loss: How can it be remedied?’ from Arghya Sengupta, research student, University of Oxford.

————————-
Dear Venkatesan,

Thank you for your post. A few of my responses to some specific points you made are below:

You said:
1. There is a grey area in both the Second and Third Judges Cases as far as how the President must consult the CJI. If you read Article 124 and the judgments in these two cases carefully, you would notice that the Supreme Court did not set aside Article 124 (2)which says that the President shall consult with such of the Judges of the Supreme Court and of the High Courts in the States as she may deem necessary for the purpose. It is surprising that the President never exercised this responsibility at all since 1993 when the Second Judges Case was decided. Even prior to 1993, the President (that is, in aid and advice of the Council of Ministers) appears to have consulted only the CJI, and not other Judges.

Response:
A semantic quibble. The Supreme Court obviously cannot “set aside”Art. 124(2), it being an article of the Constitution. Second, you are mistaken in your assumption that the President never exercised this responsibility prior to 1993. In fact there have been several occasions in the past, where such a “responsibility” was indeed exercised. A case in point which immediately comes to mind is the elevation of Justice Wanchoo to the Supreme Court, over a lot of more senior judges where in fact such consultation was widely held. I do agree with your general point however that nothing in the Second or Third Judges cases prohibits the President from consulting such other judges, this being a privilege granted to the President.

You said:
No doubt, the judgments in the Second and Third Judges Cases explain how the consultation with the CJI must be held, that is, through the Collegium, and that consultation must be effective (not concurrence) But it could not have been the intention of the Supreme Court that the Proviso to Article 124 would leave the Article itself redundant.

Response:
Two points in this regard. First, the fact that a proviso does not override the main section is a rule of statutory interpretation which is used by a Court. It is not legitimate to use this tool to the court’s ruling itself, i.e. to say the Court did not intend to override the main section, as it is not a statute. Second, the proviso to Art. 124(2) has an interesting history. The intention of the drafters as evidenced in the CAD was to ensure that the President, unlike the Crown in England, did not have unfettered discretion in appointing judges. Hence he/ she would have to consult people who were well-qualified to tender advice. The CJI was hence an obvious candidate. However the President would also have to appoint the CJI in which case a mandatory consultation procedure with the CJI himself would be absurd! Hence to make a distinction between appointment of judges generally (Art. 124(2)) and judges apart from the CJI specifically (Art. 124(2) proviso) the proviso was incorporated. Too much should not be read into how it makes the main provision redundant since its intention was not to supplement the main provision but rather add a compulsory requirement, which owing to drafting requirements, was best incorporated through a proviso.

You said:
Therefore, having consulted the CJI through the Collegium, to satisfy the Proviso, the President could still appoint Justice Shah on the basis of her consultation with other Judges of the Supreme Court or the High Court, who may or may not be part of the Collegium which could not recommend Justice Shah.

Response:
The President cannot make such an appointment because the same question had been decided in both the SCAORA and the Third Judges case that the opinion of the CJI and the collegium conveyed to the President is determinative. In the case of Justice Shah, the media reports suggest that on both occasions, the collegium did not approve the appointment of Justice Shah. Given this non-approval the President could not have taken the opinion of other judges under the proviso and appointed Justice Shah. What could have been done however was for the CJI to continue to recommend appointment with the dissenting note of the dissenting judge attached for the President’s consideration. It is then that acting on the CJI’s opinion, the President could have appointed Justice Shah. However this does not seem to be what actually transpired. Given the non-recommendation from the collegium the President cannot appoint Justice Shah.

You said:
In the Third Judges Case, the Supreme Court confuses Article 124(2) with how the CJI ought to form his view in consultation with other senior Judges. Article 124(2) refers to President’s privilege to consult any Judge whom she deems fit. This privilege cannot be compromised with that of the duty of the CJI to consult his colleagues to form his view.

Response:
Though there are a lot of deficiencies the Third Judges case suffers from, this I believe, is not one of them. When the Supreme Court refers to Art. 124(2) and the need for a collegium with whom the CJI must consult before forming his view, it obviously refers to the proviso itself since the Chief Justice is not even mentioned in the main clause. The Court does not say anything about the President’s privilege to consult other judges in this clause. Silence in this regard cannot be deemed as confusion.

You said:
2. The above interpretation is valid because the judgment in the Third Judges Case throws light on when a Collegium’s recommendation may not be binding on the President, that is, in the area of non-appointment of a Judge for cogent reasons.
As the media reports reveal, Justice Shah’s name was not favoured by only one member of the Collegium. All the remaining members including the CJI favoured him. Therefore, even if the President appoints Justice Shah, it will be in conformity with the view of the CJI, thus satisfying the requirement of the judgment in Third Judges Case.
There is nothing in the Third Judges Case judgment which says that the CJI can recommend an appointee only if there is a consensus within the collegium. The Court saw consensus as an ideal, but clearly said a recommendation could be sent, if there is majority support including that of CJI within the Collegium. That is, it does not envisage a veto to any member of the Collegium except to the CJI, who has primacy. Therefore, if the Collegium had not sent the recommendation on Justice Shah because of the opposition of one member, then it is certainly not in conformity with the judgment in the Third Judges Case, and therefore, not binding on the President.

Response:
I agree with the thrust of your argument entirely. The media reports, as you yourself state in paragraph 4 suggest that on both occasions when the collegium had to recommend appointment, it refused to do so despite the fact that the CJI was not the opposing member. If in fact there was only one opposing member, then the CJI perhaps should have, as I suggested in the point aforesaid, recommended the appointment with the dissenting note of the Justice attached for the consideration of the President. I make this point cautiously since the facts of this case are not known and this point is based on what the media report stated. For the collegium itself to have not recommended the appointment on both occasions, only, as it seems, owing to the insistence of one member (a practice that seems to have become common) is not only not a practice laid down by the Judges’ Cases but also against the spirit of the Constitution. In the CAD, B. R. Ambedkar believed that no single person should have a veto over the process of appointment (Speech on 24th May, 1949). Ambedkar was referring to the President and the CJI. Surely he would have been shocked if a single judge of a non-contemplated collegium had come to exercise the power! Anyhow the President could only have appointed Justice Shah if there was a positive recommendation from the Collegium which seems not to have been the case here.

You said:
4. It appears that the President requested the Collegium to reconsider its non-recommendation of Justice Shah, and still the recommendation to appoint Justice Shah was not forthcoming. Here, the question of Collegium reiterating its non-recommendation in order to make it binding on the President does not arise. Reiteration is binding on the Government only in the context of recommendation to appoint, not recommendation to not appoint or failure to recommend an eligible appointee. Here is the December 2008 CNN-IBN report on the Collegium’s refusal to reconsider its non-recommendation of Justice Shah.

Response:
You are quite correct insofar as the point of law on reiteration and bindingness of the reiterated recommendation is concerned. But the question here is not of reiteration at all. As you yourself state, and the media reports make clear, the collegium never in the first place approved Justice Shah’s recommendation. This, having not been done, there was no way in which the President could have bypassed the collegium. This argument again is made on the assumption that the collegium refused to recommend Justice Shah and not that the CJI and four members actually did recommend appointment and one judge declined. If that were the case, then I agree with you that the President was well within her constitutional limits to appoint Justice Shah.

A General Comment:
There are two larger points here which would be interesting to hear comments on. First, as this discussion ironically makes clear, there is considerable lack of clarity regarding the facts of what actually transpired in the process of the non-recommendation of Justice Shah. It is a subtle but significant pointer to the urgent need to ensure greater transparency in the process of judicial appointments. Second, the reason the interpretation of the Second and Third Judges’ cases are so contentious is because both these cases are blatant exercises of judicial law-making. And with any law-making exercise with subsequent practice there are bound to be gaps which will be thrown up. In fact, any discerning reader who reads Para 45 of the Manupatra judgment in the Third Judges’ Case will be able to pick innumerable contingency situations not dealt with. It is imperative hence that whichever system is instituted for judicial appointments is done through the legislative processes of law-making rather than through the narrower and wholly inappropriate confines of a judicial decision. If we want to ensure that a similar fate does not befall similar erudite justices such as Justice Shah, it is necessary to look not only at the ends which are adopted but the means used to reach those ends. Failure to do so will lead to more bad law and a half-baked jurisprudence.