MAHESH CHANDRA GUPTA v. UNION OF INDIA & ORS.

31Copy pinpoint31. Appointment under Article 217(1), vis-a-vis qualification under Article 217(2), is the function of participatory

MAHESH CHANDRA GUPTA v. UNION OF INDIA & 971 ., ORS. [S.H. KAPADIA, J.]

integrated process in which there is deliberation and consultation between the Supreme Court Collegium and the High Court Collegium. In cases of consensus, the question of primacy does not arise. The Supreme Court Collegium does not sit in appeal over the recommendations of the High Court Collegium. The concept of plurality of Judges in the formation of the opinion of the CJI 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 ljigh 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. These are the norms, apart from modalities, laid down in the case of Supreme Court Advocates-on-Record Association (supra) and also in the judgment in Re. Special G Reference No. 1of1998 (supra). 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. H

972 SUPREME COURT REPORTS [2009] 10 S.C.R.

A Application of Principles enumerated above to the facts of the Present Case:

32Copy pinpoint32. Having spelt out the dichotomy between appointment on the basis of fitness/suitability under Article 217(1) vis-a-vis qualifications under Article 217(2), we are of the view that 8 respondent no. 3 herein satisfies the qualifications prescribed under Article 217(2)(b). For this purpose, we are reading Section 217(2)(b) with Explanation (aa). 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 C Additional Law Officer (Director), Law Commission of India. He was admittedly enrolled as an Advocate of the High Court on 13.9.1975. Applying the principles enumerated hereinabove, both, with regard to entitlement to practice and computability of the period during which respondent no. 3 has worked in ITAT, D 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. As stated above, 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 E before the Collegiums. Whether respondent no. 3 was "suitable" to be appointed a High Court judge or whether he satisfied the fitness test as enumerated hereinabove is beyond justiciability as far as the present proceedings are concerned. We have decided this matter strictly on the basis of the F Constitutional scheme in the matter of Appointments of High Court Judges as laid down in the Supreme Court Advocates- on-Record Association (supra) and in Re. Special Reference No. 1of1998 (supra). Essentially, having worked as a Member of the Tribunal for 11 years, respondent no. 3 satisfies the G "eligibility qualification" in Article 217(2)(b) read with Explanation (aa). •

33Copy pinpoint33. One of the submissions advanced before us on behalf of the Original Petitioner was that consultation by members of the two Collegiums was on the basis of the performance of H

MAHESH CHANDRA GUPTA v. UNION OF !NOIA & 973 ORS. [S.H. KAPADIA, J.]

respondent no. 3 as a member of ITAT, the source of A 'I appointment being from "seNice". It was urged that there was no consultation regarding respondent no. 3 under Article 217(2)(b ). It was urged that if the perf9rmance of respondent no. 3 during the period he was holding the office of the Member of ITAT was the subject matter of consultation, then, it cannot B be said to be a consultation at all as there has not been any consultation regarding respondent no. 3 under Article 217(2)(b). In other words, the contention before us was that since respondent no. 3 was shown as a seNice Judge, he should have been considered under Article 217(2)(a). This argument c advanced on behalf of the Original Petitioner is misconceived. The very purpose for enactment of Article 217(2)(a) and Article 217(2)(b) is to provide for a mix of those from the Bar and those from SeNice who has the past experience of working as judicial } officers/officers in Tribunals. This was the object behind a policy D decision taken in the Chief Justices' Conference of 2002. The object of adding Explanation (aa) is to complement Explanation (a) appended to Article 217(2) and, together, they have liberalised the source of recruitment for appointment to the High Court. Therefore, for eligibility purposes clause (aa) of the E Explanation read with sub-clause (b) of clause (2) of Article 217 would apply to Members of ITAT, in the matter of computation ·~ of the prescribed period for an advocate to be eligible for being ~ appointed as a High Court Judge. This aspect of "eligibility" has nothing to do with "suitability". F

34Copy pinpoint34. 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 G . ,c; 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 "seNice" H

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A 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 B constitute a ground for judicial review based on lack of effective consultation. In this connection, reliance has been placed on paragraphs 29 to 32 of the judgment in Re. Special Reference No. 1 of 1998, which read as under:

"29. The majority judgment in the Second Judges case, c (1993) 4 SCC 441 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 D "to take into account the views of his colleagues in '. the Supreme Court who are likely to be conversant with the affairs of the concerned High Court. The Chief Justice of India may also ascertain the views of one or more senior Judges of that High C 1urt ... ."

The Chief Justice of India should, therefore, form his opinion in regard to a person to be recommended for

- .\ appointment to a High Court in the same manner as he forms it in regard to a recommendation for appointment to the Supreme Court, that is to say, in consultation with his seniormost puisne Judges. They would in making their decision take into account the opinion of the Chief Justice of the High Court which "would be entitled to the gre9test weight", the views of other Judges of the High Court who may have been consulted and the views of colleagues on the Supreme Court Bench "who are conversant with the ~

affairs of the High Court concerned". Into that last category would fall Judges of the Supreme Court who were puisne Judges of the High Court or Chief Justices thereof, and it is of no consequence that the High Court is not their parent

. MAHESH CHANDRA GUPTA v. UNION OF INDIA & 975 ORS. (S.H. KAPADIA, J.] High Court and they were transferred there. The objective A ~ being to gain reliable information about the proposed appointee, such Supreme Court Judge as may be in a position to give it should be asked to do so. All these views should be expressed in writing and conveyed to the Government of India along with the recommendation. B

30. Having regard to the fact that information about a .... proposed appointee to a High Court would best come from the Chief Justice and Judges of that High Court and from Supreme Court Judges conversant with it, we are not persuaded to alter the strength of the decision-making c collegium's size; where appointments to the High Courts are concerned, it should remain as it is, constituted of the Chief Justice of India and the two seniormost puisne -t :. Judges of the Supreme Court. D

31. In the context of the judicial review of appointments, the majority judgment in the Second Judges case said: (SCC pp. 707-08, para 480)

"Plurality of Judges in the formation of the opinion E of the Chief Justice of India, as indicated, is another inbuilt check against the likelihood of arbitrariness i or bias .... The judicial element being predominant ~ in the case of appointments ... , as indicated, the need for further judicial review, as in other executive actions, is eliminated." F

The judgment added: (SCC p.708, para 482)

"Except on the ground of want of consultation with the named constitutional functionaries or lack of G /'i any condition of eligibility in the case of an appointment, ... these matters are not justiciable on I any other ground ... ." .I

- 32. Judicial review in the case of an appointment or a H

976 SUPREME COURT REPORTS (2009] 10 S.C.R.

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 B 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 c 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 D 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."

E (emphasis supplied)

35Copy pinpoint35. We find no merit in the above submissions. Apart from legal niceties, on facts, we find on meticulous scrutiny of the confidential files that the content of the Report submitted by the F 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 G 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 H

MAHESH CHANDRA GUPTA v. UNION OF INDIA & 977 ORS. [S.H. KAPADIA, J.]

reconsideration. The matter was re-examined by the High Court A 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, we hold, that there was effective consultation. Since the consultation process stood complied with, its content was not amenable to judicial B review (see para 32, quoted hereinabove, of the judgment in Re. Special Reference No. 1 of 1998).

36Copy pinpoint36. Before concluding, we may state that "continuity of an Institution" is an important Constitutional principle in the C 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, as stated above, is the function of an integrated participatory consultative D process. We are constrained to make this remark in view of, to say the least, baseless allegations made in the supplementary affidavit dated 15.4.2009 against institutional decision making process. E

37Copy pinpoint37. For reasons given hereinabove, Transferred Case (C) No. 6 of 2009 stands dismissed.

R.P. Transferred case dismissed.