By Lokendra Malik
Under the Indian constitution, the president is the constitutional head of the government and exercises his powers and functions on the aid and advice of the council of ministers headed by the prime minister (PM). This is as per the mandate of Article 74(1) of the Constitution. However, after the 44th Constitutional Amendment Act, 1978, the president was empowered to return the advice of the cabinet for reconsideration, but thereafter, he is bound to accept its advice if it reiterates the same.
Now, this is a well-settled position after some landmark judgments of the Supreme Court such as Samsher Singh, Maru Ram, S. R. Bommai, etc. There are only a few areas where the president can act at his own discretion, but matters relating to judicial appointments do not fall under that category. In these matters, the president acts on the advice of the PM, who takes inputs and assistance from the law minister and other departments and agencies of the government.
The president issues the formal warrant of appointments of judges of the Supreme Court and High Courts as per Article 124 and 217, respectively. After a few judgments of the Supreme Court on the issue of judges’ appointments, it was well-established that the president has to act on the advice of the Supreme Court collegium headed by the chief justice of India (CJI) and if the PM gives him a different advice, he should ignore the same. This reflects the primacy of the judiciary over the executive in matters related to judicial appoints. Judicial rulings have supported this stand.
In the Second Judges’ case, a nine-judge Constitution Bench observed that the president must act on the advice of the Supreme Court collegium in making judicial appointments to the apex court and High Courts. “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,” the apex court ruled.
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The Supreme Court also stated that the president cannot override the collegium’s view, given the mandate of “consultation with the Chief Justice of India” in Articles 124 and 217 of the Constitution. Further, the Court went on to say: “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,with regard to the appointment 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 this advice 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.
Thus, the above-mentioned observations of the Supreme Court, which have been followed consistently in the Third, and Fourth Judges’ cases also, make it clear that the president has to act according to the recommendation of the Supreme Court collegium headed by the CJI and not on the advice of the PM that goes against the collegium’s view.
But the collegium is required to send unanimous recommendations to the president through the law minister and the PM. Admittedly, the cabinet does not come into the picture in making judges’ appointments. Although the president and the government are bound to act according to the collegium’s recommendations, they have a limited say in the entire process of judicial appointments. The government can raise objections against any recommendation of the collegium by giving cogent reasons about the antecedents or integrity of the recommended persons and the CJI needs to share the same with his collegium colleagues. But the collegium has the power to reject the government’s objections and can reiterate its recommendations, which are binding on the government and the president.
Also, such recommendations should be passed unanimously by the collegium. If the CJI sends a recommendation ignoring his collegium colleagues, the president is not bound to accept it. The four collegium members also cannot send their recommendations to the president by ignoring the CJI. In these matters, the CJI is the main link between the collegium and the government, including the president. This is a participative process devised to protect the independence of the judiciary.
The president, therefore, has a ceremonial role in making judicial appointments to the Supreme Court and High Courts. He acts on the advice of the PM and law minister in judges’ appointments, but they cannot advise him to bypass the recommendation of the Supreme Court collegium. Of course, they can persuade him to return the matter to the collegium.
The president may ask the collegium to reconsider its recommendation and also seek clarification either from it or the government regarding any file sent to him for approval. He can also make his comments about the case and ask the government to look into the matter.
Media reports indicate that in November 1998, while giving his assent to the names of judges on the file, President KR Narayanan had written:
“I would like to record my views that while recommending the appointment of Supreme Court judges, it would be consonant with constitutional principles and the nation’s social objectives if persons belonging to weaker sections of society like SCs and STs, who comprise 25 percent of the population, and women are given due consideration.”
He went on to note: “Eligible persons from these categories are available and their underrepresentation or non-representation would not be justifiable. Keeping vacancies unfilled is also not desirable given the need for representation of different sections of society and the volume of work which the Supreme Court is required to handle”. The President cannot do much. President Narayanan was an active president who read files thoroughly and did not hesitate to express his views.
Former President Pranab Mukherjee, in his book, The Presidential Years, also criticised the collegium system in these words:
“I have serious doubts about the present arrangement, and the judiciary ought to relook into the issue. The country is run by a political system in which members, who sit in Parliament and assemblies, are elected by the people. They represent the collective will of the people, and nobody can ignore this reality. The pre collegium system had existed for years since 1950, and there had been no major problems that necessitated a change.”
—The writer is an advocate in the Supreme Court