TMI Blog2008 (12) TMI 448X X X X Extracts X X X X X X X X Extracts X X X X ..... cording to him would be relevant for taking a decision in the matter. - 375 of 2007 - - - Dated:- 17-12-2008 - Dr. Arijit Pasayat and Dr. Mukundakam Sharma, JJ. REPRESENTED BY : S/Shri Anil B. Divan, Sr. Advocate, Prashant Bhushan, Rohit Kr. Singh, Sumeet Sharma, Ranvir Singh and Ms. Gayatri Devi, Advocates with him, for the Petitioner. S/Shri Gopal Subramonium, ASG, Satyakam and B. Krishna Prasad, Advocates, for the Respondent. [Judgment per : Arijit Pasayat, J.]. Judges, like Caesar s wife, should be above suspicion is the focal point in this petition under Article 32 of the Constitution of India, 1950 (in short the Constitution ) filed by Mr. Shanti Bhushan, a senior lawyer of eminence and former Law Minister and Ms. Kamini Jaiswal, an Advocate. The writ petition is stated to have been filed in public interest litigation seeking appropriate declaration and issuance of a writ of quo warranto or any other writ or direction quashing the appointment of respondent No. 2 as a Judge of the Madras High Court. The prayers read as follows : (a) restrain respondent No. 2 from functioning as a Judge of the Madras High Court. (b) Direct respondent No. 1 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Courts, the opinion of the Chief Justice of India has primacy. The opinion of the Chief Justice of India is reflective of the opinion of the judiciary, which means that it must necessarily have the element of plurality in its formation . It is to be formed after taking into account the view of some other Judges who are traditionally associated with this function . The opinion of the Chief Justice of India so given has primacy in the matter of all appointments . For an appointment to be made, it has to be in conformity with the final opinion of the Chief Justice of India formed in the manner indicated . It must follow that an opinion formed by the Chief Justice of India in any manner other than that indicated has no primacy in the matter of appointments to the Supreme Court and the High Courts and the Government is not obliged to act thereon. xx xx xx 29. The majority judgment in the Second Judges case requires the Chief Justice of a High Court to consult his two seniormost puisne Judges before recommending a name for appointment to the High Court. In forming his opinion in relation to such appointment, the Chief Justice of India is expected (SCC p. 702, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. xx xx xx 41. We have heard with some dismay the dire apprehensions expressed by some of the counsel appearing before us. We do not share them. We take the optimistic view that successive Chief Justices of India shall henceforth act in accordance with the Second Judges case and this opinion. xx xx xx 44 (8) The Chief Justice of India is obliged to comply with the norms and the requirement of the consultation process, as aforestated, in making his recommendations to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia; 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. This is how idealism and pragmatism are reconciled and integrated, to make the system workable in a satisfactory manner. Entrustment of the task of appointment of superior judges to high constitutional functionaries; the greatest significance attached to the view of the Chief Justice of India, who is best equipped to assess the true worth of the candidates for adjudging their suitability; the opinion of the Chief Justice of India being the collective opinion formed after taking into account the views of some of his colleagues; and the executive being permitted to prevent an appointment considered to be unsuitable, for strong reasons disclosed to the Chief Justice of India, provide the best method, in the constitutional scheme, to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consulted at the stage of initial appointment as Additional Judge. It is, therefore, submitted that in view of the practice followed while implementing the memorandum the Government being once satisfied that a suitable candidate was in fact appointed as an Additional Judge of the High Court, elaborate consultations as required for forming the opinion for appointment of an Additional Judge may not have considered necessary while considering the case for appointment as permanent Judge. Additionally, it is submitted that in Advocates-on-Records Association s case (supra) in paras 466, 467 and 468 this Court had observed that though some aspects in S.P. Gupta v. Union of India and Anr. [1981 (Supp) SCC 87] have the approval of the Larger Bench, yet the Executive itself has understood the correct procedure notwithstanding S.P. Gupta s case and there is no reason to depart from it when it is in consonance with the concept of the independence of the judiciary. Consequent to the judgment in Advocates-on-Record Association s case (supra) the memorandum of procedure was revised vide D.O. No. K-11017/9/93-US II dated 9-6-1994. Subsequently, on the basis of the opinion in Special Reference No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dge and therefore, if he is to continue as a Judge, he must be either reappointed as an Additional Judge or appointed as a permanent Judge. In either case, clause (1) of Article 217 would operate and no reappointment as an Additional Judge or appointment as a permanent Judge can be made without going through the procedure set out in Article 217, clause (1). Of course, an Additional Judge has a right to be considered for such reappointment or appointment, as the case may be, and the Central Government cannot be heard to say that the Additional Judge need not be considered. The Additional Judge cannot just be dropped without consideration. The name of the Additional Judge would have to go through the procedure of clause (1) of Article 217 and after consultation with the Chief Justice of India, the Governor of the State and the Chief Justice of the High Court, the Central Government would have to decide whether or not to reappoint him as an Additional Judge or to appoint him as a permanent Judge. If the procedure for appointment of a Judge followed as a result of a practice memorandum issued by the Central Government is that the proposal for appointment of a Judge may ordinarily origi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt. This Court has in unhesitating terms condemned the adoption of such a course by the High Court in the case of subordinate judiciary and much more so would it be reprehensible in the case of sitting Judge of a High Court. Moreover, leaving the investigation of complaints and doubts against a sitting Judge in the hands of an investigative agency under the control of a political Government would not be desirable because, apart from exposing the sitting Judge to unhealthy political pressures, it may not yield satisfactory result in all cases, because such an investigation would not have the benefit of the guidance of a mature and experienced person like the Chief Justice who has lived a whole lifetime in the courts and who is closely and intimately connected with lawyers and Judges in the court over which he presides. It would indeed be impossible for any one unfamiliar with the legal profession and the functioning of the courts to Judge the genuineness or veracity of the sources from which information might be obtained in regard to a sitting Judge. It must, therefore, necessarily be left to the Chief Justice of the High Court to give his opinion in regard to the suitability of an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lge in such personal attacks against Judges for the decisions given by them do not realise what incalculable damage they are doing to the judicial institution by destroying the confidence of the public in the integrity and inviolability of administration of justice. Unfortunately, it is the easiest thing to make false, reckless and irresponsible allegations against Judges in regard to their honesty and integrity and in recent times the tendency has grown to make such allegations against Judges because they have decided the case in a particular manner either against a dissatisfied litigant or contrary to the view held by a group or section of politicians or lawyers or members of the public. The Judge against whom such allegations are made is defenceless because, having regard to the peculiar nature of the office held by him, he cannot enter the arena of conflict and raise or join a public controversy. This pernicious tendency of attributing motives to Judges has to be curbed, if the judicial institution is to survive as an effective instrument for maintenance of the rule of law in the country and this can happen only if politicians, lawyers and members of the public accept the judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t follow that the facts set out in that letter were not personally discussed by him with the Chief Justice of India at the meeting held on March 26, 1981. We are clearly of the view that the full and identical facts on which the decision of the Central Government was based were placed before the Chief Justice of India and there was full and effective consultation with him before the Central Government reached the decision that S.N. Kumar should not be continued as an Additional Judge. We may also point out that this decision of the Central Government was not based on any irrelevant considerations, since, as we have already pointed out earlier, lack of reputation for integrity is certainly a most relevant consideration in deciding whether a person should be appointed a Judge. 103. We may make it clear that in taking this view we do not for a moment wish to suggest that S.N. Kumar was lacking in integrity. That is not a matter into which we are called upon to enquire and nothing that is stated by us should be regarded as expression of any opinion on this question. We may observe in fairness to S.N. Kumar that the Chief Justice of India clearly stated it to be his opinion that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Judge. There must be relevant and pertinent material to sufficiently convince a reasonable mind that the person is no longer suitable to fill the high office of a Judge and has forfeited his right to be considered for appointment. Venkataramaiah, J (as the Hon ble Judge then was) observed that a Judge appointed under Article 224(1) of the Constitution had a well founded expectation that he would be made permanent. The test which applied to the appointment of an Additional Judge under Article 217(1) would apply when an Additional Judge is to be appointed as a permanent Judge. 7. Before dealing with the case of respondent No. 2, the memorandum of procedure needs to be extracted so far as relevant. Paragraphs 11 to 18 and 20 read as follows : 11. The Chief Justice and Judges of High Courts are to be appointed by the President under Clause (1) of the Article 217 of the Constitution. The Judges of the Jammu and Kashmir High Court are to be appointed by the President under Section 95 of the Constitution of Jammu and Kashmir. Appointments to the High Court should be made on a time bound schedule so that the appointments are made well in advance preferably a month before the occurre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the Governor (i.e. Chief Minister) has nothing to add to the proposal and proceed accordingly. 15. The Union Minister of Law, Justice and Company Affairs would consider the recommendations in the light of such other reports as may be available to the Government in respect of the names under consideration. The complete material would then be forwarded to the Chief Justice of India for his advice. The Chief Justice of India would in consultation with the two senior most judges of the Supreme Court form his opinion in regard to a person to be recommended for appointment to the High Court. The Chief Justice of India and the collegium of two Judges of the Supreme Court would take into account the views of the Chief Justice of the High Court and of those Judges of the High Court who have been consulted by the Chief Justice as well as views of those Judges in the Supreme Court who are conversant with the affairs of that High Court. It is of no consequence whether that High Court is their parent High Court or they have functioned in that High Court on transfer. 15.1 After their consultation the Chief Justice of India will in course of 4 weeks send his recommendation to the Union Min ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be appointed by the President under Clause (1) of Article 224 of the Constitution. When the need for this arises, the State Government should first obtain the sanction of the Central Government for the creation of such additional posts. The correspondence relating to this should be in the normal official form. After the post is sanctioned the procedure to be followed for making the appointment will be the same as given in paragraph 12 to 18 for the appointment of a permanent Judge, except that a medical certificate will not be necessary from the person being appointed as an Additional Judge. 8. So far as the scope of judicial review in such matters is concerned, it is extremely limited and is permitted to the extent indicated in para 482 of the Supreme Court Advocates-on-Record case (supra). 9. Essentially the decision in this case would depend upon the combined reading of paras 12 and 13. 10. It is to be noted that an Additional Judge cannot be said to be on probation for the purpose of appointment as a Permanent Judge. This position is clear from the fact that when an Additional Judge is appointed there may not be vacancy for a Permanent Judge. The moment a vacancy arises, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ircumstances or events arise subsequent to the appointment as an Additional Judge, which bear adversely on the mental and physical capacity, character and integrity or other matters the appointment as a permanent Judge has to be considered in the background of what has been stated in S.P. Gupta s case (supra). Though there is no right of automatic extension or appointment as a permanent Judge, the same has to be decided on the touchstone of fitness and suitability (physical, intellectual and moral). The weightage required to be given cannot be lost sight of. As Justice Pathak J, had succinctly put it there would be reduced emphasis with which the consideration would be exercised though the process involves the consideration of all the concomitant elements and factors which entered into the process of consultation at the time of appointment earlier as an additional Judge. The concept of plurality and the limited scope of judicial review because a number of constitutional functionaries are involved, are certainly important factors. But where the constitutional functionaries have already expressed their opinion regarding the suitability of the person as an Additional Judge, according ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o him as an Additional Judge. A person who is functioning as an Additional Judge cannot be considered in such circumstances for re-appointment as an Additional Judge. If the factors which render him unsuitable for appointment as a permanent Judge exist, it would not only be improper but also undesirable to continue him as an Additional Judge. 14. Coming to the factual scenario it appears that eight Additional Judges including respondent No. 2 were appointed on 3-4-2003 and respondent No. 2 was second in the order of seniority. On 1-4-2005 the term of the aforesaid Additional Judges was extended for a period of four months. On 27-7-2005, seven of the eight Additional Judges (except respondent No. 2) were appointed as permanent Judges and the term of respondent No. 2 was extended by one year w.e.f. 3-8-2005. Again on 3-8-2006 the term of respondent No. 2 was extended for a period of six months. The aforesaid scenario according to the petitioners shows that respondent No. 2 was found to be unsuitable to be appointed as a permanent Judge. It is emphasized that all the three members of the collegium including the then Chief Justice of India opposed the appointment of respondent No. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioners as noted above is that collegium was not consulted. We have dealt with the legal position so far as this plea is concerned in detail above. Before the Chief Justice of India, at the time of accepting the recommendation for respondent No. 2 being made permanent, the details required to be furnished in terms of para 13 of the memorandum were there. There was also the recommendation of the then Chief Justice of Madras High Court who re-iterated the view of his predecessor in this regard. 16. The matter can be looked at from another angle. Supposing instead of accepting the recommendation for appointment as a permanent Judge, the Chief Justice of India would have extended the period of Additional Judgeship for two years which is maximum time permissible, there would not have been any requirement for taking the views of the collegium (as contended by the petitioners) and the result ultimately would have been the same i.e. respondent No. 2 would have continued as a Judge. It is to be noted that he is due to retire on 9-7-2009. As noted above, at various points of time, when the term of appointment as an Additional Judge of respondent No. 2 was extended, there was no challenge. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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