214th Report - Law Commission of India

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10prerogative of the executive government.Therecommendations of the appropriateconstitutional functionaries from the judicialorgan of the State has an equally importantrole.“Consultation should have sinews toachieve the constitutional purpose and shouldnot be rendered sterile by a literalinterpretation.Who is able to decide thequalities of lawyers proposed to be elevated tothe bench more than the judges of the SuperiorCourts before whom they practice?There arepreponderant and compelling considerations whythe views of the Chief Justices of the Statesand that of the Chief Justice of India should beafforded a decisive import unless the executivehas some material in its possession which mayindicate that the appointment is otherwiseundesirable.(Para 44)The View which the four learned judges shared inGupta’s case, in our opinion, does not recognize
11the special and pivotal position of theinstitution of the Chief Justice of India.(Para45) The correctness of the opinion of themajority in S.P. Gupta case relating to thestatus and importance of consultation, theprimacy of the position of the Chief Justice ofIndia and the view that the fixation of Judgestrength is not justiciable should bereconsidered by a larger bench. (Para 45)Emphasis SuppliedThe operative part of the order of reference iscontained in para 49 “as in our opinion thecorrectness of the majority view in S.P. Guptacase should be considered by a larger bench wedirect the papers of W.P. No. 1303 of 1987 to beplaced before the learned Chief Justice forconstituting a bench of nine Judges to examinethe two questions we have referred to above,namely, the position of the Chief Justice ofIndia with reference to primacy and, secondly,
Page 1 and 2: GOVERNMENT OF INDIALAW COMMISSION O
Page 3 and 4: 3The 18 th Law Commission was const
Page 5 and 6: 5The text of this Report is availab
Page 7 and 8: 7PROPOSAL FOR RECONSIDERATION OF JU
Page 9: 9the judicial wing.But to contempla
Page 13 and 14: 13E.S. Venkataramaiah JJ, in S.P. G
Page 15 and 16: 15Chief Justice of India that is pr
Page 17 and 18: 17of which is reproduced in the suc
Page 19 and 20: 19contributing and leave unsaid wha
Page 21 and 22: 21Para 491 - “At the outset, I mu
Page 23 and 24: 23in support of the conclusions rea
Page 25 and 26: 25Supreme Court and the High Courts
Page 27 and 28: 27be deemed to be punitive, and suc
Page 29 and 30: 29“This opinion has to be formed
Page 31 and 32: 31the opinion of the other function
Page 33 and 34: 33Supreme Court [Article 124 (2) of
Page 35 and 36: 353.Whether Article 124(2) as inter
Page 37 and 38: 378.Whether the Chief Justice of In
Page 39 and 40: 39Court to which the transfer is to
Page 41 and 42: 41the extent set out in the body of
Page 43 and 44: 43Provided that in the case of appo
Page 45 and 46: 45be consulted.The President should
Page 47 and 48: 47be followed in arriving at the Ch
Page 49 and 50: 49739, is urgently and immediately
Page 51 and 52: 51Chief Justice of the country. The
Page 53 and 54: 53Indian Constitution provides a be
Page 55 and 56: 55to adjudge the legal acumen. Thei
Page 57 and 58: 57“There was no problem till 1993
Page 59 and 60: 59It may be noted in this context t

214th Report - Law Commission of India

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