We are therefore satisfied, that the word consultation expressed in

Articles 124 and 217, was contemplated by the Constituent Assembly, to

curtail the free will of the executive.
If that was the true intent, the word consultation could never be assigned its
ordinary dictionary meaning. And Article 124 (or Article 217) could never be meant
to be read with Article 74. It is therefore not possible for us to accept, that the main
voice in the matter of selection and appointment of Judges to the higher judiciary
was that of the President (expressed in the manner contemplated under Article 74).
Nor is it possible to accept that primacy in the instant matter rested with the
executive. Nor that, the judiciary has been assigned a role in the matter, which was
not contemplated by the provisions of the Constitution.

More importantly, Dr. B.R. Ambedkar was suspicious and distrustful of the
possibility of the appointments being directed and impacted by political
pressure and political consideration, if the legislature was involved. We are
therefore satisfied, that when the Constituent Assembly used the term
consultation, in the above provisions, its intent was to limit the participatory
role of the political-executive in the matter of appointments of Judges to the
higher judiciary.
If the real purpose sought to be achieved by the term consultation was
to shield the selection and appointment of Judges to the higher
judiciary, from executive and political involvement, certainly the term
consultation was meant to be understood as something more than a
mere consultation.
Viewed closely, the judgments in the Second and Third Judges cases, were rendered
in a manner as would give complete effect to the observations made by Dr. B.R.
Ambedkar with reference to Article 124 (as originally incorporated). It is clearly
erroneous for the respondents to contend, that the consultative process postulated
between the President with the other Judges of the Supreme Court or the High
Courts in the States, at the discretion of the President, had been done away with by
the Second and Third Judges cases. Nothing of the sort. It has been, and is still
open to the President, in his unfettered wisdom, to the consultation
indicated in Article 124. Additionally, it is open to the President, to rely on
the same, during the course of the mandatory consultation with the Chief
Justice of India. The above, further demonstrates the executive role in the
selection of Judges to the higher judiciary, quite contrary to the submission
advanced on behalf of the respondents. We are satisfied, that the entire
discussion and logic expressed during the debates of the Constituent
Assembly, could be given effect to, by reading the term consultation as
vesting primacy with the judiciary, on the matter being debated.

This Court having concluded, that the principle of separation of powers

was expressly ingrained in the Constitution, which removes the executive
from any role in the judiciary, the right of the executive to have the final

word in the appointment of Judges to the higher judiciary, was clearly ruled
out. And therefore, this Court on a harmonious construction of the
provisions of the Constitution, in the Second and Third Judges cases,
rightfully held, that primacy in the above matter, vested with the judiciary,
leading to the inference, that the term consultation in the provisions
under reference, should be understood as giving primacy to the view
expressed by the judiciary, through the Chief Justice of India. [89]
Principles 11, 12, 13 and 15 of the Beijing Statement of Principles of the
Independence of the Judiciary clearly show that the subject of appointment is
relevant to the question of the independence of the judiciary. The contention to the
contrary cannot be accepted for this reason.
Justice S.C Agrawal representing Honble Justice A.M Ahmadi, CJI