Reply To: Consultation

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The word `consult’ implies a conference of two or more persons

Supreme Court in S.P. Gupta case opined that the principles as regards consultation for appointment of Judges in terms of Article 217 of the Constitution of India would be the same as laid down in State of Gujarat v. Sankalchand Khodidas Patel, [ (1977) 4 SCC 590 ] and other cases, stating :-

“The word `consult’ implies a conference of two or more persons or an impact of two or more minds in respect of a topic in order to enable them to evolve a correct or at least a satisfactory solution” and added: “In order that the two minds may be able to confer and produce a mutual impact, it is essential that each must have for its consideration full and identical facts, which can at once constitute both the source and foundation of the final decision”. Krishna Iyer, J. speaking on behalf of himself and Fazal Ali, J. also pointed out that “all the materials in the possession of one who consults must be unreservedly placed before the consultee” and further “a reasonable opportunity for getting information, taking other steps and getting prepared for tendering effective and meaningful advice must be given to him” and “the consultant in turn must take the matter seriously since the subject is of grave importance” (SCC p. 267). The learned Judge proceeded to add (SCC p. 267):

“Therefore, it follows that the President must communicate to the Chief Justice all the material he has and the course he proposes. The Chief Justice, in turn, must collect necessary information through responsible channels or directly, acquaint himself with the requisite data, deliberate on the information he possesses and proceed in the interests of the administration of justice to give the President such counsel of action as he thinks will further the public interest, especially the cause of the justice system.” These observations apply with equal force to determine the scope and meaning of “consultation” within the meaning of clause (2) of Article 124 and clause (1) of Article 217. Each of the constitutional functionaries required to be consulted under these two articles must have for his consideration full and identical facts bearing upon appointment or non-appointment of the person concerned as a Judge and the opinion of each of them taken on identical material must be considered by the Central Government before it takes a decision whether or not to appoint the person concerned as a Judge.”