the upper hand
By Vivek Sharma
There is no need to dissociate consultation from consent as far constitutional technicalities are concerned. In a democratic set- up, consultation is necessarily a process to reach consent. In that light, some bloggers have erroneously synonymised consent with permission or approval in connection with the Article 124 (2) of the constitution.
Consultation and consent are part of a cohesive, participative process to reach an indisputable agreement on an issue. As far as the above article is concerned, the President is the final authority of judges’ appointment despite the fact that he is required to hold consultations with the chief justice of India in such matters. Here consultation is the process of discussing the background, qualification and leanings of a judge with the chief justice of India and not to seek his consent! It is a matter of common sense that the President wouldn’t know how competent and technically qualified is a person nominated for appointment as a judge and hence he holds consultation with the chief justice of India. The latter in turn provides him with the required inputs about the persons concerned. Of course, technically the CJI plays the role of an adviser in such issues and not a dictating administrator. However, as the article 124(2) of the constitution clearly gives the President an upper hand in the matters of judges’ appointment, he can turn down any suggestion by the CJI if he is not convinced. That is what gives him more constitutional powers than the CJI.
Article 124 (2) says:
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: 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 clear from the constitutional fathers’ language that the judges will be appointed by the President. This is the primary statement. The secondary statement, or the clause, as we call it, in a way gives a direction to the President as to how he shall go about it—through consultation with the CJI.
You may consult a doctor and seek his advice about a treatment of an ailment. But, you retain the choice of rejecting it if you find it against common prudence. This power of rejection comes inbuilt for the President, who is the highest executive authority in India. Anybody who has the power of rejection, has more say in a matter than the advisers. In the President’s case, the CJI is no better than an adviser who gives a number of option to the President. Jurisprudence says the higher the options, the higher shall have the power of rejection. On the other way round, the limited options reduces the power accordingly. However, in the case of few options, the President can ask for more names in order to exercise his power of rejection. Consent is a consequent of consultations with the CJI, who goes to the President with options.
The National Judicial Appointments Commission (NJAC) Act was rejected by a constitutional bench on October 15 as it amounted to weaken the constitutional power of the President and hence the 99th Constitution Amendment Act was struck down. Constitutional amendments are meant to clarify the application of an Article and turn it redundant.