The collegium of the Madras High Court consisting of the Hon’ble Chief Justice and two senior most Judges vide Resolution dated 12.12.2013 recommended a list of 12 persons comprising of ten advocates and two District Judges for consideration by the collegium
of Supreme Court for appointment as Judges of the Madras High Court. - D.B. bench passed interim orders - supreme court collegium return the list to the High court - Apex court held that Judicial review is permissible only on assessment of eligibility and not on suitability. and further held that In such a fact-situation, the writ petitioners or the members of the Bar could approach Hon’ble the Chief Justice of India; or the Hon’ble Law Minister, but instead of resorting to such a procedure, the writ petitioners had adopted an unwarranted short cut knowing it fully well that on the ground of the suitability, the writ petitions were not maintainable.=
The writ petitioner, Mr. R. Gandhi, Senior Advocate, filed Writ
Petition No. 375 of 2014 before the Madras High Court seeking a
direction to the Union of India and the Supreme Court collegium to
return the said list as the recommendees therein were not suitable as
per the assessment of the writ petitioner and other members of the Bar
for elevation. More so, the collegium of the High Court did not
recommend the name of the eligible advocates belonging to different
castes. The Hon’ble Chief Justice and first senior most Judge did not
hail originally from Tamil Nadu so they were unable to understand and
appreciate the complex social structure of the State of Tamil Nadu. =
D.B. entertained the writ and order two interim order pending writ
According
to the first order, an interim direction was issued directing the
Ministry of Law and Justice, Government of India to maintain the
status quo,
while the order dated 9.1.2014 restrained the Government
of Tamil Nadu from making any recommendation in this regard and
further to maintain the status quo till 21.1.2014.
The issue of selection and elevation to the office of a High
Court Judge has engaged the attention of this Court. The issue of such
selection reflecting transparency, objectivity and constitutional
sustainability has engaged the attention of this Court since this
cause came to be espoused and dealt with by a nine-Judge Bench of this
Court in Supreme Court Advocates-on-Record Assn. v. Union of India,
(1993) 4 SCC 441, more particularly known as Second Judges case.
The said decision also became a subject matter of a Presidential
Reference being Special Reference No.1 of 1998 that was answered again
by a nine-Judge Bench reported in (1998) 7 SCC 739.
2. One of the issues involved in both these decisions has been
issue of judicial review of appointments as a High Court Judge or a
Supreme Court Judge. The Second Judges case (supra) answered it in
paragraphs 480 to 482 of the aforesaid decision and the Special
Reference also answered the same emphasising the limited scope of
judicial review and restrained the justiciability of such
recommendations and appointment of Judges.
3. More recently, the issue with regard to the elevation of a High
Court Judge on a recommendation of the collegium came to be
scrutinised in a challenge raised before the Allahabad High Court that
came to be finally decided by this Court in Mahesh Chandra Gupta v.
Union of India (2009) 8 SCC 273. It was again held therein following
the aforesaid decisions that suitability of a recommendee and the
consultation are not subject to judicial review but the issue of lack
of eligibility or an effective consultation can be scrutinised for
which a writ of quo warranto would lie.
for the Supreme Court, has submitted that the Supreme Court collegium
vide Resolution dated 13.2.2014 has returned the whole list of
advocates as well as of the judicial officers, with intimation to the
Hon’ble Chief Minister and the Governor of State of Tamil Nadu with an
observation that the new Chief Justice of Madras High Court as and
when appointed, would re-look into the matter and send recommendations
in consultation with two senior most colleagues after taking into
consideration all the relevant facts. Thus, in view of the subsequent
developments nothing survives to be decided.
SUMMARY OF THE CONCLUSIONS
486. A brief general summary of the conclusions stated
earlier in detail is given for convenience, as under:
….
….
(3) In the event of conflicting opinions by the
constitutional functionaries, the opinion of the judiciary
‘symbolised by the view of the Chief Justice of India’, and
formed in the manner indicated, has primacy.
(4) No appointment of any Judge to the Supreme Court or any
High Court can be made, unless it is in conformity with the
opinion of the Chief Justice of India.”
(emphasis supplied)
19. In Special Reference No. 1 of 1998 (supra), this Court held:
“32. Judicial review in the case of an appointment or a
recommended appointment, to the Supreme Court or a High Court
is, therefore, available if the recommendation concerned is not
a decision of the Chief Justice of India and his seniormost
colleagues, which is constitutionally requisite. They number
four in the case of a recommendation for appointment to the
Supreme Court and two in the case of a recommendation for
appointment to a High Court. Judicial review is also available
if, in making the decision, the views of the seniormost Supreme
Court Judge who comes from the High Court of the proposed
appointee to the Supreme Court have not been taken into account.
Similarly, if in connection with an appointment or a recommended
appointment to a High Court, the views of the Chief Justice and
senior Judges of the High Court, as aforestated, and of Supreme
Court Judges knowledgeable about that High Court have not been
sought or considered by the Chief Justice of India and his two
seniormost puisne Judges, judicial review is available. Judicial
review is also available when the appointee is found to lack
eligibility.”
(emphasis supplied)
Thus, it is apparent that judicial review is permissible only on
assessment of eligibility and not on suitability. It is not a case
where the writ petitioners could not wait till the maturity of the
cause i.e. decision of the collegium of this Court. They took a
premature step by filing writ petitions seeking a direction to Union
of India to return the list sent by the collegium of the Madras High
Court without further waiting its consideration by the Supreme Court
collegium. Even after the President of India accepts the
recommendations and warrants of appointment are issued, the Court is
competent to quash the warrant as has been done in this case of Shri
Kumar Padma Prasad v. Union of India & Ors., AIR 1992 SC 1213 wherein
the recommendee was found not possessing eligibility for the elevation
to the High Court as per Article 217(2). This case goes to show that
that even when the President, has appointed a person to a
constitutional office, the qualification of that person to hold that
office can be examined in quo warranto proceedings and the appointment
can be quashed. (See also: B.R. Kapur v. State of Tamil Nadu & Anr.,
AIR 2001 SC 3435).
21. In such a fact-situation, the writ petitioners or the members of
the Bar could approach Hon’ble the Chief Justice of India; or the
Hon’ble Law Minister, but instead of resorting to such a procedure,
the writ petitioners had adopted an unwarranted short cut knowing it
fully well that on the ground of the suitability, the writ petitions
were not maintainable.
We appreciate the fair stand taken by Shri Prabhakaran, learned
senior counsel before this Court that suitability cannot be a subject
matter of judicial review.
22. In view of the above, the transferred cases stand disposed of.
The Writ Petition Nos. 375, 1082 and 1119 of 2014 and all matters
relating to this case instituted before the Madras High Court are
disposed of accordingly.
2014 (March . Part ) judis.nic.in/supremecourt/filename=41297
B.S. CHAUHAN, J. CHELAMESWAR, M.Y. EQBAL
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (C) NOs. 892-893/2014
Registrar General, High Court of Madras
…Petitioner
Versus
R. Gandhi & Ors.
…Respondent
WITH
TRANSFERRED CASE (CIVIL) NO. 31 OF 2014
(Arising out of WP (C) No. 375/2014 pending in Madras High
Court)
WITH
TRANSFERRED CASE (CIVIL) NO. 29 & 30 OF 2014
(Arising out of TP(C) NOS. 383 & 384 /2014(D.3826/2014)
High Court of Madras by Registrar General
…Petitioner
Versus
P. Rathiram & Ors. …Respondents
J U D G M E N T
Dr. B.S. CHAUHAN, J.
1. The issue of selection and elevation to the office of a High
Court Judge has engaged the attention of this Court. The issue of such
selection reflecting transparency, objectivity and constitutional
sustainability has engaged the attention of this Court since this
cause came to be espoused and dealt with by a nine-Judge Bench of this
Court in Supreme Court Advocates-on-Record Assn. v. Union of India,
(1993) 4 SCC 441, more particularly known as Second Judges case.
The said decision also became a subject matter of a Presidential
Reference being Special Reference No.1 of 1998 that was answered again
by a nine-Judge Bench reported in (1998) 7 SCC 739.
2. One of the issues involved in both these decisions has been
issue of judicial review of appointments as a High Court Judge or a
Supreme Court Judge. The Second Judges case (supra) answered it in
paragraphs 480 to 482 of the aforesaid decision and the Special
Reference also answered the same emphasising the limited scope of
judicial review and restrained the justiciability of such
recommendations and appointment of Judges.
3. More recently, the issue with regard to the elevation of a High
Court Judge on a recommendation of the collegium came to be
scrutinised in a challenge raised before the Allahabad High Court that
came to be finally decided by this Court in Mahesh Chandra Gupta v.
Union of India (2009) 8 SCC 273. It was again held therein following
the aforesaid decisions that suitability of a recommendee and the
consultation are not subject to judicial review but the issue of lack
of eligibility or an effective consultation can be scrutinised for
which a writ of quo warranto would lie.
4. In the aforesaid backdrop, the present petitions came to be
entertained questioning the orders of the Madras High Court dated
8.1.2014 and 9.1.2014 by which and whereunder the Madras High Court
entertained writ petitions and passed interim orders to maintain
status quo regarding the process of recommendation of 12 aspirants to
the aforesaid office after the Chief Justice of the Madras High Court
had forwarded the said recommendations to the Supreme Court collegium
for consideration. The restraint order also directed the various
constitutional authorities including the State Government and the
Union Government to act accordingly as the prayer made in the
petitions was to return back the recommendations on the allegation
that the recommendations were not in conformity with an effective
consultative process and that they were otherwise for reasons
disclosed unacceptable.
5. This Court vide order dated 13.1.2014 entertained the Special
Leave Petitions (Civil) Nos. 892-893 of 2014 filed by the Madras High
Court against the orders passed by the Madras High Court on 8.1.2014
and 9.1.2014 in Writ Petition No. 375 of 2014, restraining the High
Court to proceed with the hearing of the said writ petition and issued
suo motu show cause as to why the said writ petition be not
transferred for hearing to this court. It appears that in the
meanwhile, Writ Petition No. 1082/2014 titled S. Doraisamy v. The
Registrar General, Supreme Court of India & Ors. and Writ Petition No.
1119/2014 titled P. Rathinam v. Union of India & Ors., dealing with
the same subject matter had also been filed before the Madras High
Court. The Madras High Court preferred transfer petitions to transfer
the said two writ petitions to this court for hearing alongwith
transferred case arising out of WP (C) No. 375/2014.
Permission to file TP (C) arising out of D.No.3826/2014 is
granted. We allow the transfer petitions and all the three aforesaid
writ petitions stand transferred to this Court.
Thus, in view thereof, the Special Leave Petitions (C) Nos. 892-
893/2014 have become insignificant and stand disposed of accordingly.
6. The facts and circumstances giving rise to these cases are
that:
A. The collegium of the Madras High Court consisting of the Hon’ble
Chief Justice and two senior most Judges vide Resolution dated
12.12.2013 recommended a list of 12 persons comprising of ten
advocates and two District Judges for consideration by the collegium
of Supreme Court for appointment as Judges of the Madras High Court.
The said list was forwarded to the Ministry of Law and Justice,
Government of India, the Supreme Court of India as well as to the
Government of Tamil Nadu on 14.12.2013 as required under the law.
B. The writ petitioner, Mr. R. Gandhi, Senior Advocate, filed Writ
Petition No. 375 of 2014 before the Madras High Court seeking a
direction to the Union of India and the Supreme Court collegium to
return the said list as the recommendees therein were not suitable as
per the assessment of the writ petitioner and other members of the Bar
for elevation. More so, the collegium of the High Court did not
recommend the name of the eligible advocates belonging to different
castes. The Hon’ble Chief Justice and first senior most Judge did not
hail originally from Tamil Nadu so they were unable to understand and
appreciate the complex social structure of the State of Tamil Nadu.
C. The Division Bench of the Madras High Court entertained the writ
petition and passed the orders dated 8.1.2014 and 9.1.2014. According
to the first order, an interim direction was issued directing the
Ministry of Law and Justice, Government of India to maintain the
status quo, while the order dated 9.1.2014 restrained the Government
of Tamil Nadu from making any recommendation in this regard and
further to maintain the status quo till 21.1.2014.
D. Aggrieved, the Madras High Court through Registrar General
preferred Special Leave Petition (C) Nos. 892-893 of 2014, wherein
after hearing the learned Attorney General, appearing for the
petitioner – High Court, this Court on 13.1.2014 passed the following
order: ?
“Mr. G.E. Vahanvati, learned Attorney General appearing on
behalf of the petitioner has submitted that the Madras High
Court in the impugned judgments itself, has taken note of the
judgment of this Court in Mahesh Chandra Gupta vs. Union of
India, 2009 (8) SCC 273, wherein it has been ?quoted that
judicial review is not permissible on the ground of suitability
of the candidate whose name has been recommended, therefore, the
High Court ought not to have entertained the petition.
Secondly, it has been submitted that one of the Hon'ble
Judge has entered into the Court and made certain suggestions to
the Bench hearing the case and there had been commotion in the
Court, therefore, there is no conducive atmosphere where the
matter should be permitted to be continued with the said High
Court.
In view of the above, issue notice to the respondents
returnable in two weeks as to why this case should not be
transferred to this Court and heard by a Bench of minimum three
judges. In addition to the normal mode of service, dasti
service, is permitted.
Meanwhile, the High Court is restrained to proceed further
with the matter in W.P.No.375/2014 and the interim order passed
by the High Court to maintain status quo regarding the process
of the recommendations stands vacated for the reason that it was
merely a recommendation and the said recommendation has to be
filtered at various levels and it will take a long time.
List after two weeks.”
E. When the matter came up for hearing on 18.2.2014, Shri
Prabhakaran, learned senior counsel appearing on behalf of the writ
petitioner made a statement that the Supreme Court collegium had
returned the entire list to the Madras High Court for reconsideration,
the matter rendered infructuous. The Court passed the order
dismissing the Writ Petition as having become infructuous. However,
since two other writ petitions had already been filed in the Madras
High Court with respect to the same subject matter, the High Court
filed the transfer petitions. Some of the learned counsel appearing
in these cases suggested that the matter required to be heard on
merit. As the order passed earlier had not been signed, the matter
was adjourned to be listed for hearing on 25.2.2014.
7. When the matter came on Board on 25.2.2014, the learned Attorney
General and other Advocates appearing in these cases insisted that
matters must be heard at least to decide the issue of maintainability
otherwise in future, it would be impossible to complete the process of
appointment of Judges in the High Court, particularly when sitting
Judges of the High Court also have started appearing before the Bench
hearing the case in support of the contentions of the writ
petitioners.
8. Shri Prabhakaran, learned senior counsel, has submitted that the
advocates - recommendees were not suitable for appointment as a Judge
of the Madras High Court; and the collegium failed to consider the
various other eligible and suitable advocates practicing before the
Madras High Court having different social backgrounds. In a democratic
set-up, it is the sharing of the power and all citizens of this
country irrespective of any caste or creed, who are eligible and
suitable for the post, have a right to be considered for appointment.
The collegium has a “duty” to consider the eligible and suitable
Advocates belonging to all sections of the society to ensure wider
representation. It may have a larger social dimensions if certain
segments of society are not adequately represented on the Bench. The
ethos of pluralistic democracy or diverse unequal India should be
humane, tolerant and reminiscent, yet balancing the contemporary
realities which in the case are agitated on the lines of caste and
their inclusion in mainstream of public life. The spirit of equality
pervades the provisions of the Constitution, as the main aim of the
founders of the Constitution was to create an egalitarian society
wherein social, economic and political justice prevail and equality of
status and opportunity are made available to all. However, Shri
Prabhakaran, learned Senior counsel still insisted that writ petitions
be dismissed as having become infructuous because of the subsequent
developments as referred to hereinabove.
9. Shri G.E. Vahanvati, learned Attorney General of India and Shri
Mohan Parasaran, learned Solicitor General of India, have contended
that judicial review on assessing the suitability is not provided for
as it is restricted only to the eligibility. As there is no challenge
to the fact that there had been a proper consultation by the Hon’ble
Chief Justice of Madras High Court alongwith his other Judges members
of the collegium, such judicial review is uncalled for. The writ
petition is not maintainable and the High Court has committed an error
not only in entertaining the writ petition but also granting the
interim relief. The writ petitioner has neither applied for issuance
of Writ of Quo Warranto nor Writ of Certiorari, nor could there be any
question of filing any writ petition as only the recommendations for
consideration of certain names have been made. The allegation that
none of the recommendees has any work in court, was not correct as the
incomes shown by some of them have been quite substantial indicating
roaring practice. The perpetuation of casteism continues social
tyranny of ages. The chart filed by the writ petitioner of those
recommendees also made it clear that they represented all the social
backgrounds equitably since upper caste, minority and other social
affiliations have been duly represented. No advocate has a right to be
considered for being appointed as a judge. More so, there can be no
reservation for a community in selection of a judge. Even in service
jurisprudence, reservation cannot be claimed at the cost of compromise
to efficiency of administration. Therefore, the petition is liable to
be dismissed.
10. Shri L.N. Rao, learned Additional Solicitor General appearing
for the Supreme Court, has submitted that the Supreme Court collegium
vide Resolution dated 13.2.2014 has returned the whole list of
advocates as well as of the judicial officers, with intimation to the
Hon’ble Chief Minister and the Governor of State of Tamil Nadu with an
observation that the new Chief Justice of Madras High Court as and
when appointed, would re-look into the matter and send recommendations
in consultation with two senior most colleagues after taking into
consideration all the relevant facts. Thus, in view of the subsequent
developments nothing survives to be decided.
11. The learned Attorney General tried to persuade us to decide the
other relevant issues also. However, in view of the aforesaid view
that judicial review does not lie on assessment of suitability of a
recommendee, we are not inclined to deal with it. But it is needless
to emphasise that the question of an effective representation on the
Bench and the qualitative assessment of elevations are not only to be
governed by the magnitude of the practice of a lawyer or only his
social or legal background. These are factors to be considered
alongwith the other qualities of intellect and character including
integrity, patience, temper and resilience. The wisdom and legal
learning of a particular individual coming from a particular social
background may have leanings and individual judges are not un-
afflicted by their notions of social, economic and political
philosophy, but such matters fall within the realm of suitability to
be considered by the collegium making recommendations or accepting the
same for appointment as a Judge. The issue of a broad representation
has also to be looked into from the point of view that it is necessary
to ensure that a more representative Bench does not become a less able
Bench.
12. Appointments cannot be exclusively made from any isolated group
nor should it be pre-dominated by representing a narrow group.
Diversity therefore in judicial appointments to pick up the best
legally trained minds coupled with a qualitative personality, are the
guiding factors that deserve to be observed uninfluenced by mere
considerations of individual opinions. It is for this reason that
collective consultative process as enunciated in the aforesaid
decisions has been held to be an inbuilt mechanism against any
arbitrariness.
13. The proceedings before the Division Bench of the Madras High
Court that passed the interim orders were noticed by us while vacating
the same, and the conduct of a sitting Judge raised a negative murmur
about the maintenance of propriety in judicial proceedings. The sudden
unfamiliar incident made us fume inwardly on this raw unconventional
protest that was unexpected, uncharitable and ungenerous, and to say
the least it was indecorous. In ordinary life such incidents are not
reviewed with benevolence or generosity, but here we are concerned
with a larger constitutional issue of the justiciability of the cause.
We have already indicated that the cause and its contents were beyond
the pale of scrutiny in the light of the decisions of this Court noted
by us and therefore it is not necessary to respond to the above-
mentioned unusual circumstances.
14. Additionally, we find that the learned Judge was not made a
party to the proceedings by the Division Bench of the High Court
before it nor have we accepted the oral prayer to that effect. The
exceptional personal conduct of the learned Judge does not require any
judicial response for investigating the unusual circumstances and
scrutinising the same as it is not necessary to decide the issue at
hand which can be otherwise disposed off in the manner as indicated
herein. The learned Judge may have found himself caught in a conflict
of class or caste structure and it appears that matured patience might
have given way to injure rules of protocol, but that is not the issue
that has to be answered by us. Such aspects may require a more serious
judicial assessment if required in future and therefore this question
is left entirely open.
15. It is said that immense dignity is expected, and weaknesses or
personal notions should not be exposed so as to affect judicial
proceedings. Judges cannot be governed, nor their decisions should be
affected, only by the obvious, as proceedings in a court are
conducted by taking judicial notice of such facts that may be
necessary to decide an issue. It is for this reason, that the
paramount principle of impartiality that is to be available in the
character of a Judge has been humbly expounded by none other than
Justice Felix Frankfurter in the following words:
“A good Judge needs to have three qualities, each of which is
disinterestedness.” (of Law and Life and other things that
Matter edited by Philip B. Kurland, 1965 Pg.75)
With the above observations and dignified reluctance touching
disapproval, we leave this matter for any future milestone to be
covered appropriately.
16. Three applications have been filed for impleadment, however,
this Court allowed those applicants only to intervene and make their
submissions on legal issues without impleading any of them.
In view thereof, Shri P.H. Parekh, learned senior counsel and
President of Supreme Court Bar Association duly assisted by Ms.
Aishwarya Bhati, Ms. Mahalakshmi Pavani and Shri Chander Prakash,
learned counsel, have also advanced their arguments, on various
issues, inter-alia, maintainability of the writ petitions.
17. Be that as it may, facts and circumstances of these cases
warrant examination of the issue of maintainability at the threshold.
In Mahesh Chandra Gupta (supra), this Court observed:
“39. At this stage, we may state that, there is a basic
difference between “eligibility” and “suitability”. The process
of judging the fitness of a person to be appointed as a High
Court Judge falls in the realm of suitability. Similarly, the
process of consultation falls in the realm of suitability…….
41. The appointment of a Judge is an executive function of
the President. Article 217(1) prescribes the constitutional
requirement of “consultation”. Fitness of a person to be
appointed a Judge of the High Court is evaluated in the
consultation process….
43. One more aspect needs to be highlighted. “Eligibility” is
an objective factor. Who could be elevated is specifically
answered by Article 217(2). When “eligibility” is put in
question, it could fall within the scope of judicial review.
However, the question as to who should be elevated, which
essentially involves the aspect of “suitability”, stands
excluded from the purview of judicial review.
44. At this stage, we may highlight the fact that there is a
vital difference between judicial review and merit review.
Consultation, as stated above, forms part of the procedure to
test the fitness of a person to be appointed a High Court Judge
under Article 217(1). Once there is consultation, the content of
that consultation is beyond the scope of judicial review, though
lack of effective consultation could fall within the scope of
judicial review. This is the basic ratio of the judgment of the
Constitutional Bench of this Court in Supreme Court Advocates-on-
Record Assn. v. Union of India, (1993) 4 SCC 441 and Special
Reference No. 1 of 1998, Re (1998) 7 SCC 739..
In the present case, we are concerned with the mechanism for
giving effect to the constitutional justification for judicial
review. As stated above, “eligibility” is a matter of fact
whereas “suitability” is a matter of opinion. In cases involving
lack of “eligibility” writ of quo warranto would certainly lie.
One reason being that “eligibility” is not a matter of
subjectivity. However, “suitability” or “fitness” of a person to
be appointed a High Court Judge: his character, his integrity,
his competence and the like are matters of opinion.
73. The concept of plurality of Judges in the formation of
the opinion of the Chief Justice of India is one of inbuilt
checks against the likelihood of arbitrariness or bias. At this
stage, we reiterate that “lack of eligibility” as also “lack of
effective consultation” would certainly fall in the realm of
judicial review. However, when we are earmarking a joint venture
process as a participatory consultative process, the primary aim
of which is to reach an agreed decision, one cannot term the
Supreme Court Collegium as superior to High Court Collegium. The
Supreme Court Collegium does not sit in appeal over the
recommendation of the High Court Collegium. Each Collegium
constitutes a participant in the participatory consultative
process. The concept of primacy and plurality is in effect
primacy of the opinion of the Chief Justice of India formed
collectively. The discharge of the assigned role by each
functionary helps to transcend the concept of primacy between
them.
74…..These are the norms, apart from modalities, laid down in
Supreme Court Advocates-on-Record Assn. (supra) and also in the
judgment in Special Reference No. 1 of 1998, Re. Consequently,
judicial review lies only in two cases, namely, “lack of
eligibility” and “lack of effective consultation”. It will not
lie on the content of consultation.
(Emphasis added)
(See also: C. Ravichandran Iyer v. Justice AM. Bhattacharjee & Ors.,
(1995) 5 SCC 457).
18. In Supreme Court Advocates-on-Record Assn. (supra), this Court
observed:
“450….. The indication is, that in the choice of a candidate
suitable for appointment, the opinion of the Chief Justice of
India should have the greatest weight; the selection should be
made as a result of a participatory consultative process in
which the executive should have power to act as a mere check on
the exercise of power by the Chief Justice of India, to achieve
the constitutional purpose……
467….The opinion of the judiciary ‘symbolised by the view of
the Chief Justice of India’, is to be obtained by consultation
with the Chief Justice of India; and it is this opinion which
has primacy.
468. The rule of law envisages the area of discretion to be
the minimum, requiring only the application of known principles
or guidelines to ensure non-arbitrariness, but to that limited
extent, discretion is a pragmatic need. Conferring discretion
upon high functionaries and, whenever feasible, introducing the
element of plurality by requiring a collective decision, are
further checks against arbitrariness.
482……It is, therefore, necessary to spell out clearly the
limited scope of judicial review in such matters, to avoid
similar situations in future. Except on the ground of want of
consultation with the named constitutional functionaries or lack
of any condition of eligibility in the case of an appointment,
or of a transfer being made without the recommendation of the
Chief Justice of India, these matters are not justiciable on any
other ground, including that of bias, which in any case is
excluded by the element of plurality in the process of decision-
making.
SUMMARY OF THE CONCLUSIONS
486. A brief general summary of the conclusions stated
earlier in detail is given for convenience, as under:
….
….
(3) In the event of conflicting opinions by the
constitutional functionaries, the opinion of the judiciary
‘symbolised by the view of the Chief Justice of India’, and
formed in the manner indicated, has primacy.
(4) No appointment of any Judge to the Supreme Court or any
High Court can be made, unless it is in conformity with the
opinion of the Chief Justice of India.”
(emphasis supplied)
19. In Special Reference No. 1 of 1998 (supra), this Court held:
“32. Judicial review in the case of an appointment or a
recommended appointment, to the Supreme Court or a High Court
is, therefore, available if the recommendation concerned is not
a decision of the Chief Justice of India and his seniormost
colleagues, which is constitutionally requisite. They number
four in the case of a recommendation for appointment to the
Supreme Court and two in the case of a recommendation for
appointment to a High Court. Judicial review is also available
if, in making the decision, the views of the seniormost Supreme
Court Judge who comes from the High Court of the proposed
appointee to the Supreme Court have not been taken into account.
Similarly, if in connection with an appointment or a recommended
appointment to a High Court, the views of the Chief Justice and
senior Judges of the High Court, as aforestated, and of Supreme
Court Judges knowledgeable about that High Court have not been
sought or considered by the Chief Justice of India and his two
seniormost puisne Judges, judicial review is available. Judicial
review is also available when the appointee is found to lack
eligibility.”
(emphasis supplied)
20. Thus, it is apparent that judicial review is permissible only on
assessment of eligibility and not on suitability. It is not a case
where the writ petitioners could not wait till the maturity of the
cause i.e. decision of the collegium of this Court. They took a
premature step by filing writ petitions seeking a direction to Union
of India to return the list sent by the collegium of the Madras High
Court without further waiting its consideration by the Supreme Court
collegium. Even after the President of India accepts the
recommendations and warrants of appointment are issued, the Court is
competent to quash the warrant as has been done in this case of Shri
Kumar Padma Prasad v. Union of India & Ors., AIR 1992 SC 1213 wherein
the recommendee was found not possessing eligibility for the elevation
to the High Court as per Article 217(2). This case goes to show that
that even when the President, has appointed a person to a
constitutional office, the qualification of that person to hold that
office can be examined in quo warranto proceedings and the appointment
can be quashed. (See also: B.R. Kapur v. State of Tamil Nadu & Anr.,
AIR 2001 SC 3435).
21. In such a fact-situation, the writ petitioners or the members of
the Bar could approach Hon’ble the Chief Justice of India; or the
Hon’ble Law Minister, but instead of resorting to such a procedure,
the writ petitioners had adopted an unwarranted short cut knowing it
fully well that on the ground of the suitability, the writ petitions
were not maintainable.
We appreciate the fair stand taken by Shri Prabhakaran, learned
senior counsel before this Court that suitability cannot be a subject
matter of judicial review.
22. In view of the above, the transferred cases stand disposed of.
The Writ Petition Nos. 375, 1082 and 1119 of 2014 and all matters
relating to this case instituted before the Madras High Court are
disposed of accordingly.
…………………………….J.
(Dr. B.S. Chauhan)
…………………………….J.
(J. Chelameswar)
…………………………….J.
(M.Y. Eqbal)
New Delhi,
March 5, 2014.
-----------------------
21
of Supreme Court for appointment as Judges of the Madras High Court. - D.B. bench passed interim orders - supreme court collegium return the list to the High court - Apex court held that Judicial review is permissible only on assessment of eligibility and not on suitability. and further held that In such a fact-situation, the writ petitioners or the members of the Bar could approach Hon’ble the Chief Justice of India; or the Hon’ble Law Minister, but instead of resorting to such a procedure, the writ petitioners had adopted an unwarranted short cut knowing it fully well that on the ground of the suitability, the writ petitions were not maintainable.=
The writ petitioner, Mr. R. Gandhi, Senior Advocate, filed Writ
Petition No. 375 of 2014 before the Madras High Court seeking a
direction to the Union of India and the Supreme Court collegium to
return the said list as the recommendees therein were not suitable as
per the assessment of the writ petitioner and other members of the Bar
for elevation. More so, the collegium of the High Court did not
recommend the name of the eligible advocates belonging to different
castes. The Hon’ble Chief Justice and first senior most Judge did not
hail originally from Tamil Nadu so they were unable to understand and
appreciate the complex social structure of the State of Tamil Nadu. =
D.B. entertained the writ and order two interim order pending writ
According
to the first order, an interim direction was issued directing the
Ministry of Law and Justice, Government of India to maintain the
status quo,
while the order dated 9.1.2014 restrained the Government
of Tamil Nadu from making any recommendation in this regard and
further to maintain the status quo till 21.1.2014.
The issue of selection and elevation to the office of a High
Court Judge has engaged the attention of this Court. The issue of such
selection reflecting transparency, objectivity and constitutional
sustainability has engaged the attention of this Court since this
cause came to be espoused and dealt with by a nine-Judge Bench of this
Court in Supreme Court Advocates-on-Record Assn. v. Union of India,
(1993) 4 SCC 441, more particularly known as Second Judges case.
The said decision also became a subject matter of a Presidential
Reference being Special Reference No.1 of 1998 that was answered again
by a nine-Judge Bench reported in (1998) 7 SCC 739.
2. One of the issues involved in both these decisions has been
issue of judicial review of appointments as a High Court Judge or a
Supreme Court Judge. The Second Judges case (supra) answered it in
paragraphs 480 to 482 of the aforesaid decision and the Special
Reference also answered the same emphasising the limited scope of
judicial review and restrained the justiciability of such
recommendations and appointment of Judges.
3. More recently, the issue with regard to the elevation of a High
Court Judge on a recommendation of the collegium came to be
scrutinised in a challenge raised before the Allahabad High Court that
came to be finally decided by this Court in Mahesh Chandra Gupta v.
Union of India (2009) 8 SCC 273. It was again held therein following
the aforesaid decisions that suitability of a recommendee and the
consultation are not subject to judicial review but the issue of lack
of eligibility or an effective consultation can be scrutinised for
which a writ of quo warranto would lie.
When the matter came up for hearing on 18.2.2014, Shri
Prabhakaran, learned senior counsel appearing on behalf of the writ
petitioner made a statement that the Supreme Court collegium had
returned the entire list to the Madras High Court for reconsideration,
the matter rendered infructuous. The Court passed the order
dismissing the Writ Petition as having become infructuous.
Shri L.N. Rao, learned Additional Solicitor General appearingPrabhakaran, learned senior counsel appearing on behalf of the writ
petitioner made a statement that the Supreme Court collegium had
returned the entire list to the Madras High Court for reconsideration,
the matter rendered infructuous. The Court passed the order
dismissing the Writ Petition as having become infructuous.
for the Supreme Court, has submitted that the Supreme Court collegium
vide Resolution dated 13.2.2014 has returned the whole list of
advocates as well as of the judicial officers, with intimation to the
Hon’ble Chief Minister and the Governor of State of Tamil Nadu with an
observation that the new Chief Justice of Madras High Court as and
when appointed, would re-look into the matter and send recommendations
in consultation with two senior most colleagues after taking into
consideration all the relevant facts. Thus, in view of the subsequent
developments nothing survives to be decided.
SUMMARY OF THE CONCLUSIONS
486. A brief general summary of the conclusions stated
earlier in detail is given for convenience, as under:
….
….
(3) In the event of conflicting opinions by the
constitutional functionaries, the opinion of the judiciary
‘symbolised by the view of the Chief Justice of India’, and
formed in the manner indicated, has primacy.
(4) No appointment of any Judge to the Supreme Court or any
High Court can be made, unless it is in conformity with the
opinion of the Chief Justice of India.”
(emphasis supplied)
19. In Special Reference No. 1 of 1998 (supra), this Court held:
“32. Judicial review in the case of an appointment or a
recommended appointment, to the Supreme Court or a High Court
is, therefore, available if the recommendation concerned is not
a decision of the Chief Justice of India and his seniormost
colleagues, which is constitutionally requisite. They number
four in the case of a recommendation for appointment to the
Supreme Court and two in the case of a recommendation for
appointment to a High Court. Judicial review is also available
if, in making the decision, the views of the seniormost Supreme
Court Judge who comes from the High Court of the proposed
appointee to the Supreme Court have not been taken into account.
Similarly, if in connection with an appointment or a recommended
appointment to a High Court, the views of the Chief Justice and
senior Judges of the High Court, as aforestated, and of Supreme
Court Judges knowledgeable about that High Court have not been
sought or considered by the Chief Justice of India and his two
seniormost puisne Judges, judicial review is available. Judicial
review is also available when the appointee is found to lack
eligibility.”
(emphasis supplied)
Thus, it is apparent that judicial review is permissible only on
assessment of eligibility and not on suitability. It is not a case
where the writ petitioners could not wait till the maturity of the
cause i.e. decision of the collegium of this Court. They took a
premature step by filing writ petitions seeking a direction to Union
of India to return the list sent by the collegium of the Madras High
Court without further waiting its consideration by the Supreme Court
collegium. Even after the President of India accepts the
recommendations and warrants of appointment are issued, the Court is
competent to quash the warrant as has been done in this case of Shri
Kumar Padma Prasad v. Union of India & Ors., AIR 1992 SC 1213 wherein
the recommendee was found not possessing eligibility for the elevation
to the High Court as per Article 217(2). This case goes to show that
that even when the President, has appointed a person to a
constitutional office, the qualification of that person to hold that
office can be examined in quo warranto proceedings and the appointment
can be quashed. (See also: B.R. Kapur v. State of Tamil Nadu & Anr.,
AIR 2001 SC 3435).
21. In such a fact-situation, the writ petitioners or the members of
the Bar could approach Hon’ble the Chief Justice of India; or the
Hon’ble Law Minister, but instead of resorting to such a procedure,
the writ petitioners had adopted an unwarranted short cut knowing it
fully well that on the ground of the suitability, the writ petitions
were not maintainable.
We appreciate the fair stand taken by Shri Prabhakaran, learned
senior counsel before this Court that suitability cannot be a subject
matter of judicial review.
22. In view of the above, the transferred cases stand disposed of.
The Writ Petition Nos. 375, 1082 and 1119 of 2014 and all matters
relating to this case instituted before the Madras High Court are
disposed of accordingly.
B.S. CHAUHAN, J. CHELAMESWAR, M.Y. EQBAL
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (C) NOs. 892-893/2014
Registrar General, High Court of Madras
…Petitioner
Versus
R. Gandhi & Ors.
…Respondent
WITH
TRANSFERRED CASE (CIVIL) NO. 31 OF 2014
(Arising out of WP (C) No. 375/2014 pending in Madras High
Court)
WITH
TRANSFERRED CASE (CIVIL) NO. 29 & 30 OF 2014
(Arising out of TP(C) NOS. 383 & 384 /2014(D.3826/2014)
High Court of Madras by Registrar General
…Petitioner
Versus
P. Rathiram & Ors. …Respondents
J U D G M E N T
Dr. B.S. CHAUHAN, J.
1. The issue of selection and elevation to the office of a High
Court Judge has engaged the attention of this Court. The issue of such
selection reflecting transparency, objectivity and constitutional
sustainability has engaged the attention of this Court since this
cause came to be espoused and dealt with by a nine-Judge Bench of this
Court in Supreme Court Advocates-on-Record Assn. v. Union of India,
(1993) 4 SCC 441, more particularly known as Second Judges case.
The said decision also became a subject matter of a Presidential
Reference being Special Reference No.1 of 1998 that was answered again
by a nine-Judge Bench reported in (1998) 7 SCC 739.
2. One of the issues involved in both these decisions has been
issue of judicial review of appointments as a High Court Judge or a
Supreme Court Judge. The Second Judges case (supra) answered it in
paragraphs 480 to 482 of the aforesaid decision and the Special
Reference also answered the same emphasising the limited scope of
judicial review and restrained the justiciability of such
recommendations and appointment of Judges.
3. More recently, the issue with regard to the elevation of a High
Court Judge on a recommendation of the collegium came to be
scrutinised in a challenge raised before the Allahabad High Court that
came to be finally decided by this Court in Mahesh Chandra Gupta v.
Union of India (2009) 8 SCC 273. It was again held therein following
the aforesaid decisions that suitability of a recommendee and the
consultation are not subject to judicial review but the issue of lack
of eligibility or an effective consultation can be scrutinised for
which a writ of quo warranto would lie.
4. In the aforesaid backdrop, the present petitions came to be
entertained questioning the orders of the Madras High Court dated
8.1.2014 and 9.1.2014 by which and whereunder the Madras High Court
entertained writ petitions and passed interim orders to maintain
status quo regarding the process of recommendation of 12 aspirants to
the aforesaid office after the Chief Justice of the Madras High Court
had forwarded the said recommendations to the Supreme Court collegium
for consideration. The restraint order also directed the various
constitutional authorities including the State Government and the
Union Government to act accordingly as the prayer made in the
petitions was to return back the recommendations on the allegation
that the recommendations were not in conformity with an effective
consultative process and that they were otherwise for reasons
disclosed unacceptable.
5. This Court vide order dated 13.1.2014 entertained the Special
Leave Petitions (Civil) Nos. 892-893 of 2014 filed by the Madras High
Court against the orders passed by the Madras High Court on 8.1.2014
and 9.1.2014 in Writ Petition No. 375 of 2014, restraining the High
Court to proceed with the hearing of the said writ petition and issued
suo motu show cause as to why the said writ petition be not
transferred for hearing to this court. It appears that in the
meanwhile, Writ Petition No. 1082/2014 titled S. Doraisamy v. The
Registrar General, Supreme Court of India & Ors. and Writ Petition No.
1119/2014 titled P. Rathinam v. Union of India & Ors., dealing with
the same subject matter had also been filed before the Madras High
Court. The Madras High Court preferred transfer petitions to transfer
the said two writ petitions to this court for hearing alongwith
transferred case arising out of WP (C) No. 375/2014.
Permission to file TP (C) arising out of D.No.3826/2014 is
granted. We allow the transfer petitions and all the three aforesaid
writ petitions stand transferred to this Court.
Thus, in view thereof, the Special Leave Petitions (C) Nos. 892-
893/2014 have become insignificant and stand disposed of accordingly.
6. The facts and circumstances giving rise to these cases are
that:
A. The collegium of the Madras High Court consisting of the Hon’ble
Chief Justice and two senior most Judges vide Resolution dated
12.12.2013 recommended a list of 12 persons comprising of ten
advocates and two District Judges for consideration by the collegium
of Supreme Court for appointment as Judges of the Madras High Court.
The said list was forwarded to the Ministry of Law and Justice,
Government of India, the Supreme Court of India as well as to the
Government of Tamil Nadu on 14.12.2013 as required under the law.
B. The writ petitioner, Mr. R. Gandhi, Senior Advocate, filed Writ
Petition No. 375 of 2014 before the Madras High Court seeking a
direction to the Union of India and the Supreme Court collegium to
return the said list as the recommendees therein were not suitable as
per the assessment of the writ petitioner and other members of the Bar
for elevation. More so, the collegium of the High Court did not
recommend the name of the eligible advocates belonging to different
castes. The Hon’ble Chief Justice and first senior most Judge did not
hail originally from Tamil Nadu so they were unable to understand and
appreciate the complex social structure of the State of Tamil Nadu.
C. The Division Bench of the Madras High Court entertained the writ
petition and passed the orders dated 8.1.2014 and 9.1.2014. According
to the first order, an interim direction was issued directing the
Ministry of Law and Justice, Government of India to maintain the
status quo, while the order dated 9.1.2014 restrained the Government
of Tamil Nadu from making any recommendation in this regard and
further to maintain the status quo till 21.1.2014.
D. Aggrieved, the Madras High Court through Registrar General
preferred Special Leave Petition (C) Nos. 892-893 of 2014, wherein
after hearing the learned Attorney General, appearing for the
petitioner – High Court, this Court on 13.1.2014 passed the following
order: ?
“Mr. G.E. Vahanvati, learned Attorney General appearing on
behalf of the petitioner has submitted that the Madras High
Court in the impugned judgments itself, has taken note of the
judgment of this Court in Mahesh Chandra Gupta vs. Union of
India, 2009 (8) SCC 273, wherein it has been ?quoted that
judicial review is not permissible on the ground of suitability
of the candidate whose name has been recommended, therefore, the
High Court ought not to have entertained the petition.
Secondly, it has been submitted that one of the Hon'ble
Judge has entered into the Court and made certain suggestions to
the Bench hearing the case and there had been commotion in the
Court, therefore, there is no conducive atmosphere where the
matter should be permitted to be continued with the said High
Court.
In view of the above, issue notice to the respondents
returnable in two weeks as to why this case should not be
transferred to this Court and heard by a Bench of minimum three
judges. In addition to the normal mode of service, dasti
service, is permitted.
Meanwhile, the High Court is restrained to proceed further
with the matter in W.P.No.375/2014 and the interim order passed
by the High Court to maintain status quo regarding the process
of the recommendations stands vacated for the reason that it was
merely a recommendation and the said recommendation has to be
filtered at various levels and it will take a long time.
List after two weeks.”
E. When the matter came up for hearing on 18.2.2014, Shri
Prabhakaran, learned senior counsel appearing on behalf of the writ
petitioner made a statement that the Supreme Court collegium had
returned the entire list to the Madras High Court for reconsideration,
the matter rendered infructuous. The Court passed the order
dismissing the Writ Petition as having become infructuous. However,
since two other writ petitions had already been filed in the Madras
High Court with respect to the same subject matter, the High Court
filed the transfer petitions. Some of the learned counsel appearing
in these cases suggested that the matter required to be heard on
merit. As the order passed earlier had not been signed, the matter
was adjourned to be listed for hearing on 25.2.2014.
7. When the matter came on Board on 25.2.2014, the learned Attorney
General and other Advocates appearing in these cases insisted that
matters must be heard at least to decide the issue of maintainability
otherwise in future, it would be impossible to complete the process of
appointment of Judges in the High Court, particularly when sitting
Judges of the High Court also have started appearing before the Bench
hearing the case in support of the contentions of the writ
petitioners.
8. Shri Prabhakaran, learned senior counsel, has submitted that the
advocates - recommendees were not suitable for appointment as a Judge
of the Madras High Court; and the collegium failed to consider the
various other eligible and suitable advocates practicing before the
Madras High Court having different social backgrounds. In a democratic
set-up, it is the sharing of the power and all citizens of this
country irrespective of any caste or creed, who are eligible and
suitable for the post, have a right to be considered for appointment.
The collegium has a “duty” to consider the eligible and suitable
Advocates belonging to all sections of the society to ensure wider
representation. It may have a larger social dimensions if certain
segments of society are not adequately represented on the Bench. The
ethos of pluralistic democracy or diverse unequal India should be
humane, tolerant and reminiscent, yet balancing the contemporary
realities which in the case are agitated on the lines of caste and
their inclusion in mainstream of public life. The spirit of equality
pervades the provisions of the Constitution, as the main aim of the
founders of the Constitution was to create an egalitarian society
wherein social, economic and political justice prevail and equality of
status and opportunity are made available to all. However, Shri
Prabhakaran, learned Senior counsel still insisted that writ petitions
be dismissed as having become infructuous because of the subsequent
developments as referred to hereinabove.
9. Shri G.E. Vahanvati, learned Attorney General of India and Shri
Mohan Parasaran, learned Solicitor General of India, have contended
that judicial review on assessing the suitability is not provided for
as it is restricted only to the eligibility. As there is no challenge
to the fact that there had been a proper consultation by the Hon’ble
Chief Justice of Madras High Court alongwith his other Judges members
of the collegium, such judicial review is uncalled for. The writ
petition is not maintainable and the High Court has committed an error
not only in entertaining the writ petition but also granting the
interim relief. The writ petitioner has neither applied for issuance
of Writ of Quo Warranto nor Writ of Certiorari, nor could there be any
question of filing any writ petition as only the recommendations for
consideration of certain names have been made. The allegation that
none of the recommendees has any work in court, was not correct as the
incomes shown by some of them have been quite substantial indicating
roaring practice. The perpetuation of casteism continues social
tyranny of ages. The chart filed by the writ petitioner of those
recommendees also made it clear that they represented all the social
backgrounds equitably since upper caste, minority and other social
affiliations have been duly represented. No advocate has a right to be
considered for being appointed as a judge. More so, there can be no
reservation for a community in selection of a judge. Even in service
jurisprudence, reservation cannot be claimed at the cost of compromise
to efficiency of administration. Therefore, the petition is liable to
be dismissed.
10. Shri L.N. Rao, learned Additional Solicitor General appearing
for the Supreme Court, has submitted that the Supreme Court collegium
vide Resolution dated 13.2.2014 has returned the whole list of
advocates as well as of the judicial officers, with intimation to the
Hon’ble Chief Minister and the Governor of State of Tamil Nadu with an
observation that the new Chief Justice of Madras High Court as and
when appointed, would re-look into the matter and send recommendations
in consultation with two senior most colleagues after taking into
consideration all the relevant facts. Thus, in view of the subsequent
developments nothing survives to be decided.
11. The learned Attorney General tried to persuade us to decide the
other relevant issues also. However, in view of the aforesaid view
that judicial review does not lie on assessment of suitability of a
recommendee, we are not inclined to deal with it. But it is needless
to emphasise that the question of an effective representation on the
Bench and the qualitative assessment of elevations are not only to be
governed by the magnitude of the practice of a lawyer or only his
social or legal background. These are factors to be considered
alongwith the other qualities of intellect and character including
integrity, patience, temper and resilience. The wisdom and legal
learning of a particular individual coming from a particular social
background may have leanings and individual judges are not un-
afflicted by their notions of social, economic and political
philosophy, but such matters fall within the realm of suitability to
be considered by the collegium making recommendations or accepting the
same for appointment as a Judge. The issue of a broad representation
has also to be looked into from the point of view that it is necessary
to ensure that a more representative Bench does not become a less able
Bench.
12. Appointments cannot be exclusively made from any isolated group
nor should it be pre-dominated by representing a narrow group.
Diversity therefore in judicial appointments to pick up the best
legally trained minds coupled with a qualitative personality, are the
guiding factors that deserve to be observed uninfluenced by mere
considerations of individual opinions. It is for this reason that
collective consultative process as enunciated in the aforesaid
decisions has been held to be an inbuilt mechanism against any
arbitrariness.
13. The proceedings before the Division Bench of the Madras High
Court that passed the interim orders were noticed by us while vacating
the same, and the conduct of a sitting Judge raised a negative murmur
about the maintenance of propriety in judicial proceedings. The sudden
unfamiliar incident made us fume inwardly on this raw unconventional
protest that was unexpected, uncharitable and ungenerous, and to say
the least it was indecorous. In ordinary life such incidents are not
reviewed with benevolence or generosity, but here we are concerned
with a larger constitutional issue of the justiciability of the cause.
We have already indicated that the cause and its contents were beyond
the pale of scrutiny in the light of the decisions of this Court noted
by us and therefore it is not necessary to respond to the above-
mentioned unusual circumstances.
14. Additionally, we find that the learned Judge was not made a
party to the proceedings by the Division Bench of the High Court
before it nor have we accepted the oral prayer to that effect. The
exceptional personal conduct of the learned Judge does not require any
judicial response for investigating the unusual circumstances and
scrutinising the same as it is not necessary to decide the issue at
hand which can be otherwise disposed off in the manner as indicated
herein. The learned Judge may have found himself caught in a conflict
of class or caste structure and it appears that matured patience might
have given way to injure rules of protocol, but that is not the issue
that has to be answered by us. Such aspects may require a more serious
judicial assessment if required in future and therefore this question
is left entirely open.
15. It is said that immense dignity is expected, and weaknesses or
personal notions should not be exposed so as to affect judicial
proceedings. Judges cannot be governed, nor their decisions should be
affected, only by the obvious, as proceedings in a court are
conducted by taking judicial notice of such facts that may be
necessary to decide an issue. It is for this reason, that the
paramount principle of impartiality that is to be available in the
character of a Judge has been humbly expounded by none other than
Justice Felix Frankfurter in the following words:
“A good Judge needs to have three qualities, each of which is
disinterestedness.” (of Law and Life and other things that
Matter edited by Philip B. Kurland, 1965 Pg.75)
With the above observations and dignified reluctance touching
disapproval, we leave this matter for any future milestone to be
covered appropriately.
16. Three applications have been filed for impleadment, however,
this Court allowed those applicants only to intervene and make their
submissions on legal issues without impleading any of them.
In view thereof, Shri P.H. Parekh, learned senior counsel and
President of Supreme Court Bar Association duly assisted by Ms.
Aishwarya Bhati, Ms. Mahalakshmi Pavani and Shri Chander Prakash,
learned counsel, have also advanced their arguments, on various
issues, inter-alia, maintainability of the writ petitions.
17. Be that as it may, facts and circumstances of these cases
warrant examination of the issue of maintainability at the threshold.
In Mahesh Chandra Gupta (supra), this Court observed:
“39. At this stage, we may state that, there is a basic
difference between “eligibility” and “suitability”. The process
of judging the fitness of a person to be appointed as a High
Court Judge falls in the realm of suitability. Similarly, the
process of consultation falls in the realm of suitability…….
41. The appointment of a Judge is an executive function of
the President. Article 217(1) prescribes the constitutional
requirement of “consultation”. Fitness of a person to be
appointed a Judge of the High Court is evaluated in the
consultation process….
43. One more aspect needs to be highlighted. “Eligibility” is
an objective factor. Who could be elevated is specifically
answered by Article 217(2). When “eligibility” is put in
question, it could fall within the scope of judicial review.
However, the question as to who should be elevated, which
essentially involves the aspect of “suitability”, stands
excluded from the purview of judicial review.
44. At this stage, we may highlight the fact that there is a
vital difference between judicial review and merit review.
Consultation, as stated above, forms part of the procedure to
test the fitness of a person to be appointed a High Court Judge
under Article 217(1). Once there is consultation, the content of
that consultation is beyond the scope of judicial review, though
lack of effective consultation could fall within the scope of
judicial review. This is the basic ratio of the judgment of the
Constitutional Bench of this Court in Supreme Court Advocates-on-
Record Assn. v. Union of India, (1993) 4 SCC 441 and Special
Reference No. 1 of 1998, Re (1998) 7 SCC 739..
In the present case, we are concerned with the mechanism for
giving effect to the constitutional justification for judicial
review. As stated above, “eligibility” is a matter of fact
whereas “suitability” is a matter of opinion. In cases involving
lack of “eligibility” writ of quo warranto would certainly lie.
One reason being that “eligibility” is not a matter of
subjectivity. However, “suitability” or “fitness” of a person to
be appointed a High Court Judge: his character, his integrity,
his competence and the like are matters of opinion.
73. The concept of plurality of Judges in the formation of
the opinion of the Chief Justice of India is one of inbuilt
checks against the likelihood of arbitrariness or bias. At this
stage, we reiterate that “lack of eligibility” as also “lack of
effective consultation” would certainly fall in the realm of
judicial review. However, when we are earmarking a joint venture
process as a participatory consultative process, the primary aim
of which is to reach an agreed decision, one cannot term the
Supreme Court Collegium as superior to High Court Collegium. The
Supreme Court Collegium does not sit in appeal over the
recommendation of the High Court Collegium. Each Collegium
constitutes a participant in the participatory consultative
process. The concept of primacy and plurality is in effect
primacy of the opinion of the Chief Justice of India formed
collectively. The discharge of the assigned role by each
functionary helps to transcend the concept of primacy between
them.
74…..These are the norms, apart from modalities, laid down in
Supreme Court Advocates-on-Record Assn. (supra) and also in the
judgment in Special Reference No. 1 of 1998, Re. Consequently,
judicial review lies only in two cases, namely, “lack of
eligibility” and “lack of effective consultation”. It will not
lie on the content of consultation.
(Emphasis added)
(See also: C. Ravichandran Iyer v. Justice AM. Bhattacharjee & Ors.,
(1995) 5 SCC 457).
18. In Supreme Court Advocates-on-Record Assn. (supra), this Court
observed:
“450….. The indication is, that in the choice of a candidate
suitable for appointment, the opinion of the Chief Justice of
India should have the greatest weight; the selection should be
made as a result of a participatory consultative process in
which the executive should have power to act as a mere check on
the exercise of power by the Chief Justice of India, to achieve
the constitutional purpose……
467….The opinion of the judiciary ‘symbolised by the view of
the Chief Justice of India’, is to be obtained by consultation
with the Chief Justice of India; and it is this opinion which
has primacy.
468. The rule of law envisages the area of discretion to be
the minimum, requiring only the application of known principles
or guidelines to ensure non-arbitrariness, but to that limited
extent, discretion is a pragmatic need. Conferring discretion
upon high functionaries and, whenever feasible, introducing the
element of plurality by requiring a collective decision, are
further checks against arbitrariness.
482……It is, therefore, necessary to spell out clearly the
limited scope of judicial review in such matters, to avoid
similar situations in future. Except on the ground of want of
consultation with the named constitutional functionaries or lack
of any condition of eligibility in the case of an appointment,
or of a transfer being made without the recommendation of the
Chief Justice of India, these matters are not justiciable on any
other ground, including that of bias, which in any case is
excluded by the element of plurality in the process of decision-
making.
SUMMARY OF THE CONCLUSIONS
486. A brief general summary of the conclusions stated
earlier in detail is given for convenience, as under:
….
….
(3) In the event of conflicting opinions by the
constitutional functionaries, the opinion of the judiciary
‘symbolised by the view of the Chief Justice of India’, and
formed in the manner indicated, has primacy.
(4) No appointment of any Judge to the Supreme Court or any
High Court can be made, unless it is in conformity with the
opinion of the Chief Justice of India.”
(emphasis supplied)
19. In Special Reference No. 1 of 1998 (supra), this Court held:
“32. Judicial review in the case of an appointment or a
recommended appointment, to the Supreme Court or a High Court
is, therefore, available if the recommendation concerned is not
a decision of the Chief Justice of India and his seniormost
colleagues, which is constitutionally requisite. They number
four in the case of a recommendation for appointment to the
Supreme Court and two in the case of a recommendation for
appointment to a High Court. Judicial review is also available
if, in making the decision, the views of the seniormost Supreme
Court Judge who comes from the High Court of the proposed
appointee to the Supreme Court have not been taken into account.
Similarly, if in connection with an appointment or a recommended
appointment to a High Court, the views of the Chief Justice and
senior Judges of the High Court, as aforestated, and of Supreme
Court Judges knowledgeable about that High Court have not been
sought or considered by the Chief Justice of India and his two
seniormost puisne Judges, judicial review is available. Judicial
review is also available when the appointee is found to lack
eligibility.”
(emphasis supplied)
20. Thus, it is apparent that judicial review is permissible only on
assessment of eligibility and not on suitability. It is not a case
where the writ petitioners could not wait till the maturity of the
cause i.e. decision of the collegium of this Court. They took a
premature step by filing writ petitions seeking a direction to Union
of India to return the list sent by the collegium of the Madras High
Court without further waiting its consideration by the Supreme Court
collegium. Even after the President of India accepts the
recommendations and warrants of appointment are issued, the Court is
competent to quash the warrant as has been done in this case of Shri
Kumar Padma Prasad v. Union of India & Ors., AIR 1992 SC 1213 wherein
the recommendee was found not possessing eligibility for the elevation
to the High Court as per Article 217(2). This case goes to show that
that even when the President, has appointed a person to a
constitutional office, the qualification of that person to hold that
office can be examined in quo warranto proceedings and the appointment
can be quashed. (See also: B.R. Kapur v. State of Tamil Nadu & Anr.,
AIR 2001 SC 3435).
21. In such a fact-situation, the writ petitioners or the members of
the Bar could approach Hon’ble the Chief Justice of India; or the
Hon’ble Law Minister, but instead of resorting to such a procedure,
the writ petitioners had adopted an unwarranted short cut knowing it
fully well that on the ground of the suitability, the writ petitions
were not maintainable.
We appreciate the fair stand taken by Shri Prabhakaran, learned
senior counsel before this Court that suitability cannot be a subject
matter of judicial review.
22. In view of the above, the transferred cases stand disposed of.
The Writ Petition Nos. 375, 1082 and 1119 of 2014 and all matters
relating to this case instituted before the Madras High Court are
disposed of accordingly.
…………………………….J.
(Dr. B.S. Chauhan)
…………………………….J.
(J. Chelameswar)
…………………………….J.
(M.Y. Eqbal)
New Delhi,
March 5, 2014.
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