I thank Argya for his extensive comments on my post. I wish he also responded to Points 5 and 6 of my previous post, which clarify some of the issues. Now, let me come to the specifics.
1. I referred to Supreme Court not setting aside Article 124(2) only for the sake of argument. Of course, it could not have. That was the reason why I suggested that the President’s options under Art.124(2) are still secure.
2. I did not say Proviso ipso facto makes 124(2) redundant. My argument was only that the Second and Third Judges judgments made it appear as if it was redundant, and that it was the Proviso that mattered. I wish I made this point clearer earlier. Even now, the understanding is that the President is not supposed to consult any other Judge on her own, because the Second and Third Judges judgments have laid down an elaborate procedure for consultation with the CJI. This, in my view, is a flawed understanding and does not follow from the Second and Third Judges cases.
3. I agree that according to these two judgments, opinion of the CJI and the Collegium conveyed to the President is determinative. But is it also exhaustive of the options before the President? I disagree. Having used Article 124(2), the President can effectively consult CJI under the Proviso, on names which were not forwarded for her consideration by the CJI and his collegium – which would mean the CJI must consult the Collegium on the names suggested by the President, in the light of her consultations under Article 124(2), and give her the due response of the Collegium.
4. The Collegium could not have disapproved the appointment of Justice Shah, because only one member of Collegium opposed him. The CJI’s failure to communicate the minutes of the meeting which discussed Justice Shah, to the President, therefore, was not in consonance with the Judgments, and this does not prevent the President from exercising her options under Article 124(2), and asking the Collegium to respond to her on Justice Shah. The Third Judges judgment only gives immunity to the Collegium from divulging strong and cogent reasons for not recommending a person. The President need not ask the Collegium reasons for rejecting Justice Shah, but can certainly ask details about the voting pattern of the members when the Collegium discussed his appointment.
5. The following paragraph in the Third Judges judgment is the basis for my view that the Court confused A.124(2) with the formation of CJI’s view. The Court was not silent on this issue. Actually, the Court must have relied on the Proviso to suggest that consultation with the CJI means consultation with the plurality of Judges. Instead, it sought to take away the President’s privilege of consulting any Judge who she deems fit to consult, by insisting that she consults only the CJI and the members of the Collegium. Why should the Court prevent the President from consulting Judges outside the Collegium?
Article 124(2) is an indication that ascertainment for the view of some other Judges of the Supreme Court is requisite. The object underlying Article 124(2) is achieved in this manner as the Chief Justice of India consults them for the formation of his opinion. This provision in Article 124(2) is the basis for the existing convention which requires the Chief Justice of India to consult some Judges of the Supreme Court before making his recommendation. This ensures that the opinion of the Chief Justice of India is not merely his individual opinion, but an opinion formed collectively by a body of men at the apex level in the judiciary.
6. I am unable to understand why consultation with the outgoing CJI for appointing his successor should appear absurd. The Proviso to Article 124 and its interpretation seem bizarre. Can there be a better explanation for the way the Proviso has been drafted?
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