Ashna Sisodia is teaching live on Unacademy Plus
Course: The Union ( Part V) Lesson: Supreme Court Presented by : Ashna Sisodia
Controversy over Consultation Is Seniority the only Principle? Can Merit be the possible principle? . If Yes, Then how merit will be determined? . Can merit be determined only by taking the consultation from college of judges? . And If it is compulsory to take the advice from the college of judges, Then will that consultation means concurrence or it will mean only consultation?
Controversy over Consultation OSP Gupta Case, 1982: The Judgement of the court was: No, Seniority can not be the only principle. Principle of Merit was considered for the first time. Merit can be determined alone by the president. It means President in consultation with PM and CoM. (means no need to take consultation of college of judges) In case of appointment of CJL, SC said since the word "May" has been used. So it is not obligatory on the President to take the consultation of college of judges. (hence, Seniority can be by-passed)
Controversy over Consultation In case of appointing other judges of SC, . The word "shall" make it compulsory for the President to take the consultation from CJI. But it will not be compulsory for the president to follow the consultation. Hence consultation here does not mean concurrence ( the views will not be binding on the President) SHALL CJl CJI Pre. Pre. MAY MAY College of Judges College of Judges
Controversy over Consultation Challenges of SP Gupta Case: The executive is completely responsible . Therefore, there is Primacy of Executive ( His views will prevail) . But this is against the independence of judiciary. It is against the natural justice, as any executive can be tried in the court of law. No person will have the right to decide its own judge.
Controversy over Consultation Seconds Judge case vs Union of India, 1993: protected the independence of judiciary. It accepted seniority principle can be by passed. It was in conformity with SP Gupta Case. . If merit is the principle then executive cannot have the primacy in deciding the merit of the judges. They can have participation but it should not mean primacy. . The merit should be decided by judiciary itself . Both seniority and merit can be the principle.
Controversy over Consultation OIn Case of CJI: SHALL CJI CI Prez MAY Prez College of Judges College of Judges MAY . If Seniority is the principle, then Prez. Has option to take the consultation or not. . If merit is the principle, "May" should be treated as "shall". The executive cannot alone decide the merit.
Controversy over Consultation In case of appointment of other judges of SC: The president is not only obliged to take the advice but also obliged to follow the consultation. . Here, consultation means concurrence. If merit is the principle, collegium system is compulsory. . If CJI is not providing the consultation then Prez. Cannot make the appointment. Prez. Has no right to disobey the consultation of CJI. He has only right to ask CJl to reconsider his consultation Communication is between CJI & Prez
Controversy over Consultation Presidential references third udges case: CJI initiates the name of the person to be appointed. . the Court opined that the consultation process to be adopted by the Chief justice of India requires 'consultation of plurality judges The sole opinion of the chief justice of India does not constitute the consultation process. He should consult a collegium of four senior most judges of the Supreme Court and even if two judges give an adverse opinion, he should not send the recommendation to the government. The court held that the recommendation made by the chief justice of India without complying with the norms and requirements of the consultation process are not binding on the government.