An Edited Excerpt from the Judgment of SP Gupta Case
The Power of Appointment of Judges: Article 217
The power of appointment of Judges of the Supreme Court is to be found in clause (2) of Article 124 and this clause provides that every Judge of the Supreme Court shall be appointed by the President after consultation with such of the Judges of the Supreme Court and the High Courts in the States as the President may deem necessary for the purpose, provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted.
It is obvious on a plain reading of clause (2) of Article 124 that it is the President, which in effect and substance means the Central Government, which is empowered by the Constitution to appoint Judges of the Supreme Court. So also Article 217, clause (1) vests the power of appointment, of Judges of High Courts in the Central Government, but such power is exercisable only “after consultation with the Chief Justice of India, the Governor of the State, and, the Chief Justice of the High Court.”
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 is not an unfettered power in the sense that the Central Government cannot act arbitrarily without consulting the constitutional functionaries specified in the two articles but it can act only after consulting them and the consultation must be full and effective consultation.
Consultation must be full and effective consultation
The question immediately arises what constitutes ‘consultation’ within the meaning of clause (2) of Article 124 and clause (1) of Article 217. Fortunately, this question is no longer res integra and it stands concluded by the decision of this Court in Sankalchand Sheth case (Union of India v.Sankalchand Himmatlal Sheth,). It is true that the question in Sankalchand Sheth case (Union of India v. Sankalchand Himmatlal Sheth, related to the scope and meaning of ‘consultation’ in clause (1) of Article 222, but it was common ground between the parties that ‘consultation’ for the purpose of clause (2) of Article 124 and clause (1) of Article 217 has the same meaning and content as ‘consultation’ in clause (1) of Article 222.
Chandrachud, J., as he then was, in his judgment in Sankalchand Sheth case (Union of India v. Sankalchand Himmatlal Sheth, quoted with approval the following passage from the judgment given by Justice Subba Rao, when he was Judge of the Madras High Court in R. Pushpam v. State of Madras : 1953 1 Mad LJ 88 : 66 Mad LW 53 SCC(p) 228 ),
“The word ‘consult’ implies a conference of two or more persons or an impact of two or more minds in respect of a topic in order to enable them to evolve a correct or at least a satisfactory solution” and added:
“In order that the two minds may be able to confer and produce a mutual impact, it is essential that each must have for its consideration full and identical facts, which can at once constitute both the source and foundation of the final decision”.
Krishna Iyer, J. speaking on behalf of himself and Fazal Ali, J. also pointed out that “all the materials in the possession of one who consults must be unreservedly placed before the consultee” and further “a reasonable opportunity for getting information, taking other steps and getting prepared for tendering effective and meaningful advice must be given to him” and “the consultant in turn must take the matter seriously since the subject is of grave importance”(SCC p. 267). The learned Judge proceeded to add (SCC p. 267):
“Therefore, it follows that the President must communicate to the Chief Justice all the material he has and the course he propose. The Chief Justice, in turn, must collect necessary information through responsible channels or directly, acquaint himself with the requisite data, deliberate on the information he possesses and proceed in the interests of the administration of justice to give the President such counsel of action as he thinks will further the public interest, especially the cause of the justice system.”
These observations apply with equal force to determine the scope and meaning of ‘consultation’ within the meaning of clause (2) of Article 124 and clause (1) of Article 217. Each of the constitutional functionaries required to be consulted under these two articles must have for his consideration full and identical facts bearing upon appointment or non-appointment of the person concerned as a Judge and the opinion of each of them taken on identical material must be considered by the Central Government before it takes a decision whether or not to appoint the person concerned as a Judge.
Consultation cannot be equated with concurrence
But, while giving the fullest meaning and effect to ‘consultation’, it must be borne in mind that it is only consultation which is provided by way of fetter upon the power of appointment vested in the Central Government and consultation cannot be equated with concurrence. We agree with what Krishna Iyer, J. said in Sankalchand Sheth case (Union of India v. Sankalchand Himmatlal Sheth, that “consultation is different from consentaneity. They may discuss but may disagree; they may confer but may not concur” (SCC p. 268).
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 a Judge in the High Court or the Supreme Court, so long as such decisions is based on relevant considerations and is not otherwise mala fide.
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, though being a unanimous opinion of all the three constitutional functionaries, it would have great weight and an appointment is made by the Central Government in defiance of such unanimous opinion, it may prima facie by vulnerable to attack on the ground that it is mala fide or based on irrelevant grounds.
The same position would obtain if an appointment is made by the Central Government contrary to the unanimous opinion of the Chief Justice of the High Court and the Chief Justice of India. But we do not think that ordinarily the Central Government would make an appointment of a Judge in a High Court if all the three constitutional functionaries have expressed an opinion against it.
We may, however, make it clear that on a proper interpretation of clause (2) of Article 124 and clause (1) of Article 217, it is open to the Central Government to take its own decision in regard to appointment or non-appointment of a Judge in a High court or the Supreme Court after taking into account and giving due weight to the opinions expressed by the constitutional functionaries required to be consulted under these two Articles and the only ground on which such decision can be assailed is that it is mala fide or based on irrelevant considerations.
In case of difference of opinion amongst the constitutional functionaries
Where there is a difference of opinion amongst the constitutional functionaries who are consulted, it is for the Central Government to decide whose opinion should be accepted and whether appointment should be made or not. It was contended on behalf of the petitioners there were there is deference of opinion amongst the constitutional functionaries required to be consulted, the opinion of the Chief Justice of India should have primacy, since he is the head of the Indian Judiciary and paterfamilias of the judicial fraternity.
We find ourselves unable to accept this contention. It is difficult to see on what principles primacy can be given to the opinion of one constitutional functionary, when clause (1) of Article 217 places all the three constitutional functionaries on the same pedestal so far as the process of consultation is concerned and does not make any distinction between one constitutional functionary and another.
Each of the three constitutional functionaries occupies a high Constitutional office and clause (1) of Article 217 provides that the appointment of a High Court Judge shall be made after consultation with all the three constitutional functionaries without assigning superiority to the opinion of one over that of another.
It is true that the Chief Justice of India is the head of the Indian Judiciary and may be figuratively described and paterfamilias of the brotherhood of Judges but the Chief Justice of a High Court is also an equally important constitutional functionary and it is not possible to say that so far as the consultative process is concerned, he is in any way less important than the Chief Justice of India.
In fact, under the constitutional scheme, the Chief Justice of a High Court is not subject to the administrative superintendence of the Chief Justice of India nor is he under the control or supervision of the Chief Justice of India. It is only the power of hearing appeals against the decision of the Chief Justice of a High Court that is possessed by the Chief Justice of India and there, his superiority over the Chief Justice of the High Court ends.
If we look at the raison d’etre of the provision for consultation enacted in clause (1) of Article 217, it will be obvious that the opinion given by the Chief Justice of the High Court must have at least equal weight as the opinion of the Chief Justice of India, because ordinarily the Chief Justice of the High Court would be in a better position to know about the competence, character and integrity of the person recommended for appointment as a Judge in the High Court.
The opinion of the Governor of the State, which means the State Government would also be entitled to equal weight, not in regard to the technical competence of the person recommended and him knowledge and perception of law on which the Chief Justice of the High Court would be the proper person to express an opinion, but in regard to the character and integrity of such person, his antecedents and his social philosophy and value-system.
So also the opinion of the Chief Justice of India would be valuable because he would not be affected by caste, communal or other parochial considerations and standing outside the turmoil of local passions and prejudices, he would be able to look objectively at the problem of appointment. There is therefore, a valid and intelligible purpose for which the opinion of each of the three constitutional functionaries is invited before the Central Government can take a decision whether or not to appoint a particular person as a Judge in a High Court.
The opinion of each of the three constitutional functionaries is entitled to equal weight and it is not possible to say that the opinion of the Chief Justice of India must have primacy over the opinions of the other two constitutional functionaries. If primacy were to be given to the opinion of the Chief Justice of India, it would, in effect and substance, amount to concurrence, because giving primacy would mean that his opinion must prevail over that of the Chief Justice of the High Court and the Governor of the State, which means that the Central Government must accept his opinion.
But as we pointed out earlier, it is only consultation and not concurrence of the Chief Justice of India that is provided in clause (1) of Article 217. When, in the course of debates in the Constituent Assembly, an amendment was moved that the appointment of a Judge of a High Court or the Supreme Court should be made with the concurrence of the Chief Justice of India, Dr. B. R. Ambedkar made the following comment which is very significant:
With regard to the question of the concurrence of the Chief Justice, it seems to me that those who advocate that proposition seem to rely implicitly both on the impartiality of the Chief Justice and the soundness of his judgment. I personally feel no doubt that the Chief Justice is a very eminent person. But after all, the Chief Justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have; and I think, to allow the Chief Justice practically a veto upon the appointment of Judges is really to transfer the authority to the Chief Justice which we are not prepared to vest in the President or the Government of the day.
I therefore, think that, that is also a dangerous proposition. It is therefore, clear that where there is difference of opinion amongst the constitutional functionaries in regard to appointment of a Judge in a High Court, the opinion of none of the constitutional functionaries is entitled to primacy but after considering the opinion of each of the constitutional functionaries and giving it due weight, the Central Government is entitled to come to its own decision as to which opinion it should accept in deciding whether or not to appoint the particular person as a Judge.
So also where a Judge of the Supreme Court is to be appointed, the Chief Justice of India is require to be consulted, but again it is not concurrence but only consultation and the Central Government is not bound to act in accordance with the opinion of the Chief Justice of India though it is entitled to great weight as the opinion of the head of the India Judiciary.
The ultimate power of appointment rests with the Central Government and that is in accord with the constitutional practice prevailing in all democratic countries.
Reference
SP Gupta & Others v. Union of India & another (1981)