The government on Monday told Supreme Court that the role of the President in appointing judges to the higher judiciary is merely “ceremonial” and “formal” in nature — in reality, it is the Council of Ministers headed by the Prime Minister that makes such appointments.
Arguing in defence of the National Judicial Appointments Commission (NJAC), Attorney General Mukul Rohatgi told a Constitution Bench led by Justice J S Khehar that the appointment of judges was an “executive function”, prescribed under the Constitution to be done by the Cabinet. The President’s role was confined to issuing warrants for appointments, he said.
Earlier, Article 124 of the Constitution had stated that appointment of judges in the top court should be “made by the President” after consultation with those judges of the high courts and the Supreme Court “as the President may deem necessary”.
Similarly, Article 217 had said that a high court judge should be “appointed by the President” after consultation with the CJI and the Governor of the state; the chief justice of the High Court concerned too should be consulted.
However, the Constitutional amendments notified last December have replaced President’s “consultation” with the recommendation of the NJAC, which has to be a six-member body to be headed by the CJI.
Asked by the Bench to explain the role of the President in appointing judges, Rohatgi said, “Let us start with a presumption that his role is ceremonial in nature and he has to act on the aid and advise of the Council of Ministers but for some four-five areas that are specifically mentioned. The consultation is in strict sense with the executive.”
The AG answered in the negative when the Bench asked whether the President can have his independent consultation after ignoring the aid and advise of the Cabinet. “No. he cannot do it. Although there is no bar on him to seek opinions from people he wish, he will have to act on aid and advise of the cabinet. In place of ‘President’, read ‘executive’ in Article 124,” he added.
Rohatgi pointed out even under amended Article 124, the Council of Ministers has a defined role and the Law Minister represents their will in the NJAC.
But then, Bench said the President’s obligation to act on the aid and advise of the Council of Ministers was perhaps confined to discharge of executive functions whereas appointment of judges cannot be said to be an executive function.
“There are different chapters in the Constitution. In chapters other than those pertaining to the executive, we think the President exercises constitutional powers and not executive power. Article 124 may be one of them since it is outside the chapter relating to executives. If the President means the Council of Ministers then all appointments can be said to be done by the Cabinet,” it said.
“Yes,” replied the AG. “This was the position before 1992-93 when this court gave itself the power to appoint judges through Collegium. Executive was the appointing authority. Appointing judges can never be a judicial function. Your role is to decide cases and the Constitution-framers had never thought judges will appoint judges,” he added.
But the Bench asked the AG what gave him the impression that judges appoint judges when the Collegium only made recommendations and other aspects were examined by the executive. “It may be a nice, catchy phrase to say judges appoint judges but that is not so. An analogy can state politicians appoint the President,” said the Bench.
Rohatgi further told the Bench that NJAC takes away the judges’ “right to insist upon an appointment” and that an appointment can go through only with a special majority when at least five of the six members agree to it —- he added, though, that this cannot be construed as an affront to the independence of the judiciary.
“Ushering in a new appointments process is symbolic of the will of the people of this country. The Parliament in its wisdom would be the best judge of when the Constitution would require to be amended to answer to the needs of the citizenry and its wisdom cannot be questioned by this court. Functionaries like the Prime Minister and Law Minister cannot be viewed with suspicion. I am a judge and so I know the best about who should be appointed cannot be the norm anymore,” said the AG.