Neither NJAC nor Collegium: Then what?

In the three judges cases delivered in 1993, 1998 and 2015, the Supreme Court has misinterpreted Article 124 sub-clause 1 to encroach on Presidents power to appoint judges of SC. SC Constitution benches starting from 1993 have all along misinterpreted the text of this sub-clause by reading the word consultation to mean concurrence by CJI. Even assuming for a moment that consultation means concurrence, the moot point is who should concur with whom. Should CJI concur with Presidents choice of persons or is it the other way round. In the hierarchy who is superior. Is it the President or is it the CJI. This entire line of argument in the SCs three judges case hinges on this one particular interpretation of the word consultation and it beats logic for the reasons stated above. Recently Arun Jaitley our legal luminary in the government also highlighted this aspect in a special debate on Timesnow after I tweeted him about this farce in the three judges cases starting from 1993. It is therefore important to read the relevant provisions of the original Articles 124 and 217 as it existed and then see if there is any merit in the SC judgments and its audacious and successful attempt in usurping the powers to appoint judges of higher judiciary. In my view, the collegium system is completely illegal and the President has the powers to appoint judges of the higher judiciary by virtue of Articles 124 read with 217 of the Constitution. This will be done in consultation with judges of the SC in consultation with CJI as well as CJ of HC in case of High Court. When President does this, he will act as per the advise of the Council of Ministers headed by the PM in terms of Article 74.

santosh hatwar 05/11/2015