Page 1 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.

Page 2 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.

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Page 3 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

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Page 4 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.

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Page 5 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

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Page 6 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.

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Page 7 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.

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Page 8 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

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Page 9 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

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Page 10 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.

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Page 11 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

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Page 12 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

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Page 13 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

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Page 14 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.

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Page 15 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….

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Page 16 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

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Page 17 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……

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Page 18 467….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

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Page 19 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

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Page 20 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.

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Page 21 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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