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. of decision 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.REPORTABLEIN 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.
Dated;March 5, 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
2
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
the
State
various constitutional
Government
accordingly
as
the
and
prayer
authorities including
the Union
made in
Government
the
petitions
to
act
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
3
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
A.
that:
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
consideration
ten advocates and two District Judges for
by the for
collegium
of
Supreme
Court
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
4
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:
5
“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
infructuous.
for
reconsideration,
the
matter
rendered
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
6
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
submitted
suitable
Court;
Prabhakaran,
that
for
and
the
advocates
appointment
the
learned
as
a
-
senior
counsel,
recommendees
Judge
of
the
has
were not
Madras High
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
7
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
However,
and
Shri
opportunity
Prabhakaran,
are
made
learned
available
Senior
to
counsel
all.
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
8
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
practice.
been
The
quite
substantial
perpetuation
of
indicating
casteism
roaring
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
minority
and
backgrounds
other
social
equitably
since
affiliations
upper
have
been
caste,
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
9
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
inclined to deal with it.
that
the
question
of
a
recommendee,
we
are
not
But it is needless to emphasise
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.
isolated
Appointments cannot be exclusively made from any
group
nor
should
it
be
pre-dominated
by
representing a narrow group. Diversity therefore in judicial
10
appointments
coupled
with
to
a
pick
up
the
qualitative
best
legally
personality,
trained
are
the
minds
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.
Madras
The proceedings before the Division Bench of the
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
generosity,
but
are
here
not
we
reviewed
are
with
concerned
benevolence
with
a
or
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
11
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.
12
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.
these
Be
cases
that
as
it
warrant
may,
facts and
examination of
circumstances
the
issue
of
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
13
“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
14
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
by the view
be obtained
of India;
primacy.
opinion of the judiciary ‘symbolised
of the Chief Justice of India’, is to
by consultation with the Chief Justice
and it is this opinion which has
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
15
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)
16
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.
of
decision
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.
17
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.
No comments:
Post a Comment