By TIOL News Service

NEW DELHI, JULY 15, 2009: THE President of India by a Warrant dated 6.8.2008 under her hand and seal appointed Dr. Satish Chandra, Respondent no. 3 as Additional Judge of Allahabad High Court.

The question for consideration is: whether appointment of Respondent no. 3 as Additional Judge of Allahabad High Court was an infraction of Article 217(2) and Article 217(1) of the Constitution of India? Was he qualified for appointment as a Judge – if so – has the mandatory process of consultation under the Constitution stood followed?

Shri Mahesh Chandra Gupta, a practicing advocate, filed a Writ Petition under Article 226 of the Constitution before the Allahabad High Court on 18.8.2008 challenging the appointment of Respondent no. 3 as an Additional Judge of the Allahabad High Court on the ground that he was not eligible for such an appointment. The Original Petitioner prayed for issuance of quo warranto directing Respondent no. 3 as a Judge of Allahabad High Court to show the authority of his Office and to justify the constitutionality of his appointment as a Judge of Allahabad High Court. According to the original petitioner, Respondent no. 3 lacked basic eligibility qualification; that Respondent no. 3 had not practiced as an advocate for at least ten years in the Allahabad High Court and that Respondent no. 3 did not hold Judicial Office of a judicial service subordinate to Allahabad High Court. In the original petition, the challenge was only on the ground of lack of eligibility but not on suitability and/or want of effective consultation process, which grounds were taken later on by supplementary affidavits.

By Order dated 18.2.2009, the Supreme Court withdrew the Writ Petition, filed by Shri Mahesh Chandra Gupta, from the file of Allahabad High Court and transferred the same to the Supreme Court .

Contentions:

Shri R.K. Jain, senior counsel appearing on behalf of the Original Petitioner in the High Court, submitted that,

1.    for qualifying under Article 217(2)(b) read with Explanation (aa) of the Constitution a person who has held a Judicial Office or the office of a Member of a Tribunal for more than ten years, but has not practiced as an Advocate even for a day though enrolled as an Advocate, cannot be said to be eligible for appointment as a High Court Judge.

2.    mere enrolment which gives “a right to practice” is not enough to make a person eligible under Article 217(2)(b).

3.    right to practice is one thing and having practiced is another thing and, therefore, not actually practicing but having acquired a right to practice would not constitute a qualification under Article 217(2)(b) of the Constitution.

4.    even if a mere “right to practice” amounts to having practiced, if a person after having remained an Advocate for some time, ceases to practice and employs himself for earning, and thereafter holds an office of a Member of the Tribunal, the period of his holding the office as a Member cannot be computed or taken into account with the aid of Explanation (aa) to Article 217(2)(b) of the Constitution.

5.    between 1975 to 1997, respondent no. 3 remained in service at various places, he became a Member of the Tribunal and worked as a Member between 3.12.1997 and 6.8.2008, therefore, since respondent no. 3 had ceased to practice from 1975 to 1997, the period during which respondent no. 3 worked as a Member of the Tribunal ought not to be computed with the aid of Explanation (aa) to Article 217(2)(b) of the Constitution.

6.    on the facts of this case, there was consultation by the members of the two Collegiums based on the performance of respondent no. 3 as a Member of a Judicial Tribunal; that the source of respondent no. 3 appointment stood shown as from “service” but there was no consultation regarding his appointment under Article 217(2)(b).

7.    the performance of respondent no. 3 during the period he held the office of the Member of a Judicial Tribunal, cannot be said to be “a consultation” as, in this case, there was neither any consultation regarding the period during which respondent no. 3 could be said to have held Judicial office under Article 217(2)(a) nor on his having practiced as an Advocate for ten years under Article 217(2)(b), which was the basic eligibility criteria.

8.    for being eligible to be appointed a Judge of a High Court under Article 217(2)(b) of the Constitution, a person needs to be an Advocate of a “High Court”.

9.    for appointment to the post of a High Court Judge, the person has to be an advocate of a High Court whereas for appointment in the District Court, he may not be an advocate of a High Court but simply “an advocate”.

10. in this case, reliable information was withheld by the Chief Justice of the Allahabad High Court from the Supreme Court Collegium; that elimination of judicial review did not mean elimination of judicial scrutiny of the consultation process and if in a given case like the present one “reliable information” mentioned in the Report of the three Judges Sub-committee stood withheld from the Supreme Court Collegium then such withholding of information would certainly fall in the category of lack of consultation.

The Supreme Court observed, “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.

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. It is important to note that each constitutional functionary involved in the participatory consultative process is given the task of discharging a participatory constitutional function, there is no question of hierarchy between these constitutional functionaries. Ultimately, the object of reading such participatory consultative process into the Constitutional scheme is to limit judicial review restricting it to specified areas by introducing a judicial process in making of appointment(s) to the higher judiciary. 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.

Respondent No. 3 has worked as a Member of ITAT between the period 3.12.1997 and 6.8.2008 (11 years). Prior thereto, he has worked as Additional Law Officer (Director), Law Commission of India. He was admittedly enrolled as an Advocate of the High Court on 13.9.1975. He stood qualified for appointment as a Judge of the Allahabad High Court. Therefore, this case does not suffer from the vice of lack of eligibility. In this case, the matter has arisen from the writ of quo warranto and not from the writ of certiorari. The bio-data of respondent no. 3 was placed before the Collegiums. Whether respondent no. 3 was “suitable” to be appointed a High Court judge or whether he satisfied the fitness test is beyond justiciability as far as the present proceedings are concerned. Essentially, having worked as a Member of the Tribunal for 11 years, respondent no. 3 satisfies the “eligibility qualification” in Article 217(2)(b) read with Explanation (aa).

Coming to the question of consultation, it has been submitted on behalf of the Original Petitioner that there has been lack of effective consultation, particularly when “reliable information” supplied by the three Judges Sub-committee appointed to examine the quality of judgments rendered by respondent no. 3 stood withheld from the Supreme Court Collegium. According to the Original Petitioner, the Chief justice of the Allahabad High Court had appointed a three Judges Sub-committee to examine the quality of judgments of the persons coming under the zone of consideration from “service” quota and, therefore, if the Sub-committee gave adverse comments about the reputation of respondent no. 3 in the course of his working as a Member of ITAT and the Chief Justice of the Allahabad High Court fails to forward that information to the Supreme Court Collegium, it would certainly constitute a ground for judicial review based on lack of effective consultation.

The Supreme Court found no merit in the above submissions. Apart from legal niceties, on facts, the Court found on meticulous scrutiny of the confidential files that the content of the Report submitted by the Sub-committee containing information regarding the lack of actual practice as an Advocate of the High Court and the working of respondent no. 3 as a Member of ITAT during his nascent years in office was before the Supreme Court Collegium, albeit from a different channel. In fact, the information contained in the Report of the Sub-committee was also brought to the notice of the Supreme Court Collegium, though through a different route. Further, that information was meticulously vetted and the recommendation of the High Court Collegium for appointment was sent back by the Supreme Court Collegium to the High Court Collegium for reconsideration. The matter was re-examined by the High Court Collegium. That Collegium reiterated its position and it recommended once again the name of respondent no. 3 for appointment as a High Court Judge.

On facts, the Supreme Court held that there was effective consultation. Since the consultation process stood complied with, its content was not amenable to judicial review.

Before concluding, the Supreme Court stated that “continuity of an Institution” is an important Constitutional principle in the Institutional decision-making process which needs to be insulated from opinionated views based on misinformation. At the end of the day “trust” in the decision-making process is an important element in the process of appointment of Judges to the Supreme Court and the High Court, which is the function of an integrated participatory consultative process.

(See 2009-TIOL-83-SC-IT in 'Income Tax')

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