This is an edited excerpt from the Judgment
Drafting of the Articles
When the Constitution was being drafted, there was general agreement that the appointments of Judges in the superior judiciary should not be left to the absolute discretion of the executive, and this was the reason for the provision made in the Constitution imposing the obligation to consult the Chief Justice of India and the Chief Justice of the High Court. This was done to achieve independence of the Judges of the superior judiciary even at the time of their appointment, instead of confining it only to the provision of security of tenure and other conditions of service after the appointment was made.
It was realised that the independence of the judiciary had to be safeguarded not merely by providing security of tenure and other conditions of service after the appointment, but also by preventing the influence of political considerations in making the appointments, if left to the absolute discretion of the executive as the appointing authority. It is this reason which impelled the incorporation of the obligation of consultation with the Chief Justice of India and the Chief Justice of the High Court in Articles 124(2) and 217(1). The Constituent Assembly Debates disclose this purpose in prescribing for such consultation, even though the appointment is ultimately an executive act.
Government of India Acts
This clear departure in the constitutional scheme from the earlier pattern in the Government of India Acts, wherein the appointments were in the absolute discretion of the Crown, is a sure indication that irrespective of the question of primacy of the Chief Justice of India in the matter of appointments, the Constitutional provisions cannot be construed to read therein the absolute discretion of primacy of the Government of India to make appointments of its choice, after completing formally the requirement of consultation, even if the opinion given by the consultees of the judiciary is to the contrary.
In our opinion, this departure made in the Constitution of India from the earlier scheme under the Government of India Acts, is itself a strong circumstance to negative the view that in the constitutional scheme primacy is given to the opinion of the Government of India, notwithstanding the mandate of obligatory consultation with the Chief Justice of India all cases, and also with the Chief Justice of the High Court in the case of appointment to a High Court.
The consideration must, therefore, be confined to the comparative weight to be attached to the opinion of the Chief Justice of India vis-a-vis the opinion of the other consultees and the Central Government.
Justice Bhagwati in SP Gupta Case
It follows that the view of Bhagwati, J. (as he then was) in S.P. Gupta which reflects the majority opinion therein, at least to the extent indicated hereafter, conflicts with this constitutional scheme, and, with respect, does not appear to be a correct construction of the provisions in Article 124(2) and 217(1).
Certain portions from the opinion of Bhagwati, J. to this effect are, as under:
“ … It is clear on a plain reading of these two Articles that the Chief Justice of India, the Chief Justice of the High Court and such other Judges of the High Courts and of the Supreme Court as the Central Government may deem it necessary to consult, are merely constitutional functionaries having a consultative role and the power of appointment resides solely and exclusively in the Central Government…. …”
It would therefore be open to the Central Government to override the opinion given by the constitutional functionaries required to be consulted and to arrive at its own decision in. regard to the appointment of the judge in the High Court or the Supreme Court…. Even if the opinion given by all the constitutional functionaries consulted by it is identical, the Central Government is not bound to act in accordance with such opinion….”
The Value of Chief Justice’s View
It is obvious, that the provision for consultation with the Chief Justice of India and, in the case of the High Courts, with the Chief Justice of the High Court, was introduced because of the realisation that the Chief Justice is best equipped to know and assess the worth of the candidate, and his suitability for appointment as a superior judge; and it was also necessary to eliminate political influence even at the stage of the initial appointment of a judge, since the provisions for securing his independence after appointment were alone not sufficient for an independent judiciary.
At the same time, the phraseology used indicated that giving absolute discretion or the power of veto to the Chief Justice of India as an individual in the matter of appointments was not considered desirable, so that there should remain some power with the executive to be exercised as a check, whenever necessary. The indication is, that in the choice of a candidate suitable for appointment, the opinion of the Chief Justice of India should have the greatest weight; the selection should be made as a result of a participatory consultative process in which the executive should have power to act as a mere check on the exercise of power by the Chief Justice of India, to achieve the constitutional purpose.
Thus, the executive element in the appointment process is reduced to the minimum and any political influence is eliminated. It was for this reason that the word ‘consultation’ instead of ‘concurrence’ was used, but that was done merely to indicate that absolute discretion was not given to any one, not even to the Chief Justice of India as individual, much less to the executive, which earlier had absolute discretion under the Government of India Acts.
The primary aim must be to reach an agreed decision taking into account the views of all the consultees, giving the greatest weight to the opinion of the Chief Justice of India who, as earlier stated, is best suited to know the worth of the appointee. No question of primacy would arise when the decision is reached in this manner by consensus, without any difference of opinion.
In Case of Conflicting Opinions
However, if conflicting opinions emerge at the end of the process, then only the question of giving primacy to the opinion of any of the consultees arises. For reason indicated earlier, primacy to the executive is negatived by the historical change and the nature of functions required to be performed by each. The primacy must, therefore, lie in the final opinion of the Chief Justice of India, unless for very good reasons known to the executive and disclosed to the Chief Justice of India, that appointment is not considered to be suitable.
The majority view in S.P. Gupta to the effect that an executive should have primacy, since it is accountable to the people while the judiciary has no such accountability, is an easily exploded myth, a bubble which punishes on a mere touch. Accountability of the executive to the people in the matter of appointments of superior Judges has been assumed, and it does not have any real basis. There is no occasion to discuss the merits of any individual appointment in the legislature on account of the restriction imposed by Articles 121 and 211 of the Constitution.
Experience has shown that it also does not form a part of the manifesto of any political party, and is not a matter which is, or can be, debated during the election campaign. There is thus no manner in which the assumed accountability of the executive in the matter of appointment of an individual judge can be raised, or has been raised at any time.
On the other hand, in actual practice, the Chief Justice of India and the Chief Justice of the High Court, being responsible for the functioning of the courts, have to face the consequence of any unsuitable appointment which gives rise to criticism levelled by the ever vigilant Bar. That controversy is raised primarily in the courts. Similarly, the Judges of the Supreme Court and the High Courts, whose participation is involved with the Chief Justice in the functioning of the courts, and whose opinion is taken into account in the selection process, bear the consequences and become accountable.
Thus, in actual practice, the real accountability in the matter of appointments of superior Judges is of the Chief Justice of India and the Chief Justices of the High Courts, and not of the executive which has always held out, as it did even at the hearing before us that, except for rare instances, the executive is guided in the matter of appointments by the opinion of the Chief Justice of India.
The Collegium
However, it need hardly be stressed that the primacy of the opinion of the Chief Justice of India in this context is, in effect, primacy of the opinion of the Chief Justice of India formed collectively, that is to say, after taking into account the views of his senior colleagues who are required to be consulted by him for the formation of his opinion.
In view of the provision in Article 74(1), the expression ‘President’ in Articles 124(2) and 217(1) means the President acting in accordance with the advice of the Council of Ministers with the Prime Minister at the head; and the advice given by the Council of Ministers has to accord with the mandate in the Constitution, or, in other words, with the construction made of Articles 124(2) and 217(1) by this Court, in discharge of its constitutional duty to interpret the Constitution.
A fortiori, advice given by the Council of Ministers which binds the President and requires him to act in accordance therewith, had to be the advice given in accordance with the constitutional provisions, as interpreted by this Court.
If it were to be held that, notwithstanding the requirement of Articles 124(2) and 217(1) of mandatory consultation with the Chief Justice of India and Chief Justice of the High Court, the Council of Ministers has the unfettered discretion to give contrary advice, ignoring the view of the Chief Justice of India, and the President is bound by Article 74(1) to act in accordance with that advice, then the constitutional purpose of introducing the mandatory requirement of consultation in Articles 124(2) and 217(1) would be frustrated.
It is for this reason that in the matter of appointments of Judges of the superior judiciary, the interaction and harmonisation of Article 74(1) with Articles 124(2) and 217(1) has to be borne in mind, to serve the constitutional purpose.
In short in the matter of appointments of Judges of the superior judiciary, the constitutional requirement is, that the President is to act in accordance with the advice of the Council of Ministers as provided in Article 74(1); and the advice of the Council of Ministers is to be given in accordance with Articles 124(2) and 217(1), as construed by this Court. In this sphere, Article 74(1) is circumscribed by the requirement of Articles 124(2) and 217(1) and all of them have to be read together.
The above view also accords with the provisions in the Constitution pertaining to the removal from office of Judges of the Supreme Court and the High Courts. The removal of a Supreme Court Judge in accordance with Clauses (4) and (5) of Article 124, and of a High Court judge similarly, as provided in Article 218, requires a different scheme to be followed, to which Article 74(1), in terms does not apply. It cannot be suggested that the President, while making an order removing a Judge of the Supreme Court or of a High Court, is to be governed entirely by the advice of the Council of Ministers in accordance with Article 74(1), ignoring the special provisions relating to the removal of a Judge, incorporated in the Constitution.
Similarly, in the case of appointments, the special provision prescribing the process for appointment is of significance, and Article 74(1) has to be read along therewith, and not in isolation, to make correct construction.
The question of primacy of the role of the Chief Justice of India has to be examined not merely with reference to the fact that an appointment is an executive act, or with reference only to the comparative constitutional status of the different consultees involved in the process, but with reference also to the constitutional purpose sought to be achieved by these provisions, and the manner in which that purpose can be best achieved
Providing for the role of the judiciary as well as the executive in the integrated process of appointment merely indicated that it is a participatory consultative process, and the purpose is best served if at the end of an effective consultative process between all the consultees the decision is reached by consensus, and no question arises of giving primacy to any consultee.
Primarily, it is this indication which is given by the constitutional provisions, and the constitutional purpose would be best served if the decision is made by consensus without the need of giving primacy to any one of the consultees on account of any difference remaining between them. The question of primacy of the opinion of any one of the constitutional functionaries qua the others would arise only if the resultant of the consultative process is not one opinion reached by consensus.
Qualifications of being a Judge
The constitutional purpose to be served by these provisions is to select the best from amongst those available for appointment as Judges of the superior judiciary, after consultation with those functionaries who are best suited to make the selection. It is obvious that only those persons should be considered fit for appointment as Judges of the superior judiciary who combine the attributes essential for making an able, independent and fearless judge. Several attributes together combine to constitute such a personality.
Legal expertise, ability to handle cases, proper personal conduct and ethical behaviour, firmness and fearlessness are obvious essential attributes of a person suitable for appointment as a superior Judge. The initial appointment of Judges in the High Courts is made from the Bar and the subordinate judiciary. Appointment to the Supreme Court is mainly from amongst High Court Judges, and on occasion directly from the Bar. The arena of performance of those men are the courts, it is, therefore, obvious that the maximum opportunity for adjudging their ability and traits, is in the courts and, therefore, the Judges are best suited to assess their true worth and fitness for appointment as judges.
This is obviously the reason for introducing the requirement of consultation with the Chief Justice of India in the matter of appointment of all Judges, and with the Chief Justice of the High Court in the case of appointment of a Judge in a High Court. Even the personal traits of the members of the Bar and the Judges are quite often fully known to the Chief Justice of India and the Chief Justice of the High Court who get such information from various sources.
There may however, be some personal trait of an individual lawyer or Judge, which may be better known to the executive and may be unknown to the Chief Justice of India and the Chief Justice of the High Court, and which may be relevant for assessing his potentiality to become a good Judge. It is for this reason, that the executive is also one of the consultees in the process of appointment.
The object of selecting the best men to constitute the superior judiciary is achieved by requiring consultation with not only the judiciary but also the executive to ensure that every relevant particular about the candidate is known and duly weighed as a result of effective consultation between all the consultee, before the appointment is made. It is the role assigned to the judiciary and the executive in the process of appointment of Judges which is the true index for deciding the question of primacy between them, in case of any difference in their opinion. The answer which best sub serves this constitutional purpose would be the correct answer.
It has been indicated that the judiciary being best suited and having the best opportunity to assess the true worth of the candidates, the constitutional purpose of selecting the best available men for appointment as superior Judges is best served by ascribing to the judiciary, as a consultee, a more significant role in the process of appointment. The only question is of the extent of such significance and the true meaning of the primacy of the role of the Chief Justice of India in this context.
Conclusion
The rule of law envisages the area of discretion to be the minimum requiring only the application of known principles or guidelines to ensure non-arbitrariness, but to that limited extent, discretion is a pragmatic need. Conferring discretion upon high functionaries and, whenever feasible, introducing the element of plurality by requiring collective decision, are further checks against arbitrariness. This is how idealism and pragmatism are reconciled and integrated, to make the system workable in a satisfactory manner.
Entrustment of the task of appointment of superior Judges to high constitutional functionaries; the greatest significance attached to the view of the Chief Justice of India, who is best equipped to assess the true worth of the candidates for adjudging their suitability; the opinion of the Chief Justice of India being the collective opinion formed after taking into account the views of some of his colleagues; and the executive being permitted to prevent and appointment considered to be unsuitable, for strong reasons disclosed to the Chief Justice of India, provide the best method, in the constitutional scheme, to achieve the constitutional purpose without conferring absolute discretion or veto upon either the judiciary or the executive, much less in any individual, be he the Chief Justice of India or the Prime Minister.
Reference
Supreme Court Advocate on record bar association v. Union of India (1993)