Report No. 121

Chapter IX

Corollary

9.1. If the structure recommended herein is acceptable, it would necessitate amendment to the Constitution. The power to appoint a Judge of the Supreme Court and a Judge of the High Court, which today vests in the President of India, would continue to vest in the President of India. The power has to be exercised under the new dispensation in consultation with the National Judicial Service Commission.

To that extent, Article 124 and Article 217 will have to be amended. Similarly, Articles 233 and 234 will have to be amended. There are two ways of going at it. One suggestion was that one can provide consultation with this Commission by a necessary amendment in respect of appointments to both the High Courts and the Supreme Court with a convention that the recommendation of this Commission would be binding.

No doubt where something which the Commission appears to have overlooked comes to the notice of the President, who would be aided in discharge of this function by the Council of Ministers, the proposal may be referred back to the Commission and the Commission would consider that aspect but if after reconsideration the Commission reiterates its recommendation, there would be no option with the President but to appoint the person.

Another suggestion was that consultation can be informal by a convention. That by itself may not be sufficient because the consultation with the local Chief Minister and the Governor will have to be omitted from Article 217. Even if such Commission is set up and by convention consultation with it is made mandatory, yet some amendment to Article 124 would equally be necessary, in the larger interest of the institution of judiciary, this will be inevitable.

D.A. Desai,
Chairman.

S.C. Chose,
Member.

Mrs. V.S. Rama Devi,
Member-Secretary.

New Delhi,
Dated: 31st July, 1986.