214th Report - Law Commission of India

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8formally expresses the result of theinstitutional process leading to the appointmentof judges.To limit that expression to itsliteral limitation shorn of its constitutionalbackground and purpose is to borrow JusticeFrankfurter’s phrase “to stick in the bark ofwords.”The judges in that case had opined that“Judicial Review is a part of the basicconstitutional structure and one of the basicfeatures of the essential Indian constitutionalpolicy.The essential constitutional doctrinedoes not by itself justify or necessitate anyprimacy of the executive wing on the ground ofits political accountability to the electorate.On the contrary what is necessary is aninterpretation sustaining the strength andvitality of Judicial Review.It might undercertain circumstances be said that government isnot bound to appoint a Judge so recommended by
9the judicial wing.But to contemplate a powerfor the executive to appoint a person despitehis being disapproved or not recommended by theChief Justice of the State and the Chief Justiceof India would be wholly inappropriate and wouldconstitute an arbitrary exercise of power. Thenagain, whenever there might be difference ofopinion between the Chief Justice of a state andthe Chief Justice of India – Some of the weightyreasons in this behalf are set out by the otherthree Judges in their opinion – the opinion ofthe Chief Justice of India should have thepreponderant role. We are of the view that theprimacy of the Chief Justice of India in theprocess of selection would improve the qualityof selection. The purpose of the ‘consultation’is to safeguard the independence of thejudiciary and to ensure selection of properpersons.The matter is not, therefore, to beconsidered that the final say is the exclusive
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: 7PROPOSAL FOR RECONSIDERATION OF JU
Page 11 and 12: 11the special and pivotal position
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
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214th Report - Law Commission of India

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