Fali Nariman, arguing on behalf of the Petitioners today, submitted a note to the Court responding to the submissions of the Union..On the issue of eminent persons, he argued that “they can be part of the decision making process, not the decision taking process”. Adding to this, he also asked the question,.“Why does the President consult the Judges, and not these eminent persons?”.He discussed the submission of the Respondents that the appointment of judges was an executive act, stating that it was never intended by the framers of the Constitution that the appointment of judges would be left in the hands of the executive. Speaking about the 14th Law Commission Report, he said,.“Mr. Setalvad’s report is beautifully drafted to avoid executive influence in the appointment of judges. There was a short crisp paragraph, just like Mr. Setalvad’s arguments in court themselves. It is not purely an executive function, it is somewhat mixed. But this is not a function of ministerial advice.”.Nariman argued that from the very start, the language and drafting of Article 124(2) puts an end to ministerial involvement in the appointment of judges. He emphasized this, stating the importance of guarding the independence of the judiciary. He argued that this Article was the only one of its kind, where the President was required to consult with the Chief Justice of India..Justice Khehar added that this was an executive function, but an executive function within the judicial realm. Nariman replied stating that while this was true, along with the consultation process, it was “something more”..Nariman also quoted the report of the Ad-hoc committee of the Supreme Court, which stated that it was not found expedient to leave the power of appointment of judges to the unfettered power of the President. Further, he quoted the Union Constitution Committee, which said that the President should appoint judges after consulting the Chief Justice of India, showing further that this was the original intention at the very conception of the Constitution..The Bench added to this, saying that even in the First Judges’ case, one judge in the minority had stated that the appointment of judges was a judicial function. Nariman said,.“We have to take a package deal. Aid and advice is there. But the last word is with the Chief Justice.” .He supported the arguments of Arvind Datar, who at the initial stages of the hearings referred to the process as “structured bargaining”. When referring to whether this process of appointment could be seen as a vital part of the independence of the judiciary, he stated,.“We are talking of whether the independence of the judiciary includes the power to appoint, not power to reject. The right to insist, the right of appointment- this is the core of the right!”.Attorney General Mukul Rohatgi submitted files before the Court from the 1950s; which illustrated the procedure for appointment of High Court judges, to demonstrate the process of consultation that takes place when judges were appointed. The Bench, discussed that the initiation was either by the executive or the judiciary; which then consulted the CJI, and was then forwarded to the President..Nariman will continue his arguments tomorrow.
Fali Nariman, arguing on behalf of the Petitioners today, submitted a note to the Court responding to the submissions of the Union..On the issue of eminent persons, he argued that “they can be part of the decision making process, not the decision taking process”. Adding to this, he also asked the question,.“Why does the President consult the Judges, and not these eminent persons?”.He discussed the submission of the Respondents that the appointment of judges was an executive act, stating that it was never intended by the framers of the Constitution that the appointment of judges would be left in the hands of the executive. Speaking about the 14th Law Commission Report, he said,.“Mr. Setalvad’s report is beautifully drafted to avoid executive influence in the appointment of judges. There was a short crisp paragraph, just like Mr. Setalvad’s arguments in court themselves. It is not purely an executive function, it is somewhat mixed. But this is not a function of ministerial advice.”.Nariman argued that from the very start, the language and drafting of Article 124(2) puts an end to ministerial involvement in the appointment of judges. He emphasized this, stating the importance of guarding the independence of the judiciary. He argued that this Article was the only one of its kind, where the President was required to consult with the Chief Justice of India..Justice Khehar added that this was an executive function, but an executive function within the judicial realm. Nariman replied stating that while this was true, along with the consultation process, it was “something more”..Nariman also quoted the report of the Ad-hoc committee of the Supreme Court, which stated that it was not found expedient to leave the power of appointment of judges to the unfettered power of the President. Further, he quoted the Union Constitution Committee, which said that the President should appoint judges after consulting the Chief Justice of India, showing further that this was the original intention at the very conception of the Constitution..The Bench added to this, saying that even in the First Judges’ case, one judge in the minority had stated that the appointment of judges was a judicial function. Nariman said,.“We have to take a package deal. Aid and advice is there. But the last word is with the Chief Justice.” .He supported the arguments of Arvind Datar, who at the initial stages of the hearings referred to the process as “structured bargaining”. When referring to whether this process of appointment could be seen as a vital part of the independence of the judiciary, he stated,.“We are talking of whether the independence of the judiciary includes the power to appoint, not power to reject. The right to insist, the right of appointment- this is the core of the right!”.Attorney General Mukul Rohatgi submitted files before the Court from the 1950s; which illustrated the procedure for appointment of High Court judges, to demonstrate the process of consultation that takes place when judges were appointed. The Bench, discussed that the initiation was either by the executive or the judiciary; which then consulted the CJI, and was then forwarded to the President..Nariman will continue his arguments tomorrow.
