Cross-posted from Law and Other Things.
I draw readers' attention to Salil Tripathi's interesting piece on Justice A.P.Shah's non-elevation to the Supreme Court in Livemint. I especially liked his view that Justice Shah contributed to nyaya rather than niti.
I am sure our political class wants such a Judge in the Supreme Court. But is the President helpless in the context of Proviso to Article 124 which mandates that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted? Here are my tips on how the President can get around this problem, if she is really keen that Justice Shah must be appointed as a Supreme Court Judge.
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.
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. 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 might have favoured his appointment.
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.
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 by any member of the Collegium except by 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.
3.In fact, Collegium's views on every eligible Judge in terms of seniority must be sent to the President with a recommendation to appoint or not appoint. That is why the Third Judges Case judgment says if the CJI's view is opposed by other senior Judges of the Collegium, then the President is not bound to appoint. Here, the inference is that in that situation, the CJI would have been in minority within the Collegium. But Justice Shah's case is different. The CJI and all members of the Collegium except one favoured him. Since the dissenter was in a minority in the Collegium, there was every reason for the President to appoint Justice Shah.
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.
5.The Third Judges judgment only says the Collegium need not give strong and cogent reasons for not recommending a person. But the Government can certainly ask for the Collegium's views if it considered and discussed a possible appointee. The Government, then can well decide on the basis of the minutes of the meeting- in the absence of a recommendation from the Collegium - whether the non-recommendation was in conformity with the Third Judges judgment, and whether a Judge other than the CJI illegally vetoed a possible recommendation to appoint.
6. The system of appointing Judges on the basis of recommendations from the Collegium, no doubt, was laid down in the Second and Third Judges judgments. But these judgments do not abrogate Article 124(2) and the President's privilege to consult the CJI and other Judges independently of the Collegium's recommendation, to consider appointments of eligible persons, whom the Collegium may have overlooked.