Today, ongoing debate and fourth
judges case in Supreme Court over NJAC is baseless. There is No need for all
these issues. All these are the product of a blander made by SC regarding the
interpretation of original Art. 124 of our Holy Constitution. And also, if
people in power in various institutions like judiciary and others were virtuous
then there would not be any need for all these Collegium or NJAC like cases.
The original Art. 124 of Holy Constitution need a interpretation in the same
way in which our framers of constitution thought about. We think The term
Consultation under Art.124 should always be interpreted along with Art. 74 of
Indian constitution.
As per Art. 74 of our Holy
Constitution, There shall be a Council of Minister to Aid and Advice to His
Excellency President of India. This means that all the executive decision are
subject to a binding aid and advice by Council of Minister to President.
And, as per Art. 124 the President
shall appoint judges of higher judiciary in consultation with CJI. This means
President will appoint judges of higher judiciary ie The President will appoint
the judges of Higher judiciary with the aid and advice of Council of minister
headed by Honorable Prime Minister. And, it is duty of Council of minister to
search and hunt such candidate who are worthy to get appointed in higher
judiciary. For this purpose Council of minister will use its machinery like IB
reports and all other such possible ways and means including setting up of a
full time Independent body to short list the names for Council of Ministers.
After, such search and hunt for candidates the Council of Minister headed by PM
(may be through a Full time independent body) will recommend these names to
President for appointment. After recommendation, President will use its
mandatory power to consult with CJI. Here consultation means Active
Consultation. Under this Doctrine of Active Consultation, President will ask
CJI that He has any objection over the names recommended by Council of Minister
headed by Honorable Prime Minister (may be through a Full time independent
body). Here, If CJI has any further information (objection) about any such
candidate or condidates which has been missed by council of minister due to
some reason which may be an error also, then CJI will tell that information
(objection) to President about that particular candidate or condidates with
some valid proof, Not just mere suspicion or CJI's own like or dislike. This
means, CJI will have to work (during process of Consultation) on the basis of
proof, Not on the basis of his own like or dislike. After such advice President
will send back that particular name or names to Council of Minister (may be
that independent body) for reconsideration and will appoint rest of the
candidates which has got no objection certificate (NOC) from CJI. And, Council
of Minister with its executive machinery will investigate the whole matter
regarding that particular candidate or candidates whose name were sent back by
President for reconsideration. If Objection raised by CJI is found to be
correct then council of minister will automatically drop that particular name
or names. And, will search and hunt for suitable candidate or candidates. And,
if Objection raised by CJI is found to be incorrect and baseless then council
of minister will recommend that particular name or names of Candidates to
President in written that after investigation...No such matter or issue (Objection
raised by CJI) has been found correct about that particular candidate or
candidates about whom CJI has raised concern. And finally, that particular
candidate or candidates will also get appointed, as Judicial Servant in the
office of Higher Judiciary, by President of India .
Here, under Art. 124 consultation
does not mean that CJI will search, hunt and recommend the name of candidate or
candidates regarding judicial appointment.
if doing so then it is violation of Art 74 because The President funtions
on the Aid and Advice of Council of Minister headed by Prime Minister (may be
through a Full time independent body). And, Council of Minister headed by Prime
Minister is responsible to Parliament. And, Members of Parliament are directly
responsible to People of country. And,
also Judiciary is NOT directly responsible to people. If then Judiciary is
advising to President then this is also Anti-Democratic. So, in no case CJI or
judiciary should come in picture regarding whole process of appointment of judicial
servants in higher judiciary except The consultation process. And, here under
Art. 124 of our Holy Constitution, Consultation means - only just a NOC
certificate from CJI only on the names recommended by Council of Ministers. If
CJI will give NOC regarding the recommendations of Council of Minister then
well otherwise President will send back the name of candidate to Council of
Ministers for reconsideration regarding the objection & issue raised by
CJI regarding that candidate or candidates. If Issue is found correct and valid
them Council of Minister will automatically drop the name of that particular
candidate or candidates otherwise recommend the name of that particular
candidate with in written investigated proof to President regarding that issue
raised by CJI. And, then CJI shall give NOC to that particular candidate or
candidates. And President will appoint that particular candidate in the office
of higher judiciary as a judge.
We do NOT think that there is any
problem in it. It is the best possible interpretation of Art 124 in the light
of Art 74 of our Holy Constitution.
Rajani Kant Indra
Lucknow University, Lucknow
April 30, 2015
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