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R. Jayaasimha Babu, J.—We have heard the petitioner-party-in-person, who addressed us at great length. He has taken us through the
petition filed by him and he has also made additional submissions. He also invited our attention to the three leading judgments of the Supreme
Court concerning the appointment of Judges to the Superior Courts in the country. It was submitted by the party-in-person that the matter is one of
great embarrassment and delicacy even to him, but that he felt compelled to come to the Court with this petition, as he felt that the Bar has a
prominent role to play in the matter of selection and appointment of Judges and in his views that role had not been duly recognised in the selection
process which is said to be currently on going. The petitioner rightly does not and cannot claim to be the spokesman for the Bar. A reference was
made to the decision of the Supreme Court in the case of S.P. Gupta Vs. President of India and Others, rendered by a Bench of seven
Honourable Judges of the Court, wherein, it was observed that there can be no doubt that the practising lawyers have a vital interest in the
independence of the judiciary and if any unconstitutional or illegal action is taken by the State or any public authority which has the effect of
imparing the independence of judiciary, they would certainly be interested in challenging the constitutionality or legality of such action.
What was pointed out by the Apex Court by that observation was that the bar has a vital role to play in ensuring the independence of the
judiciary and in preventing the imparing of that independence. The question before us is not about the independence of the Judiciary. It is the very
high functionaries of the judiciary who are involved in the process of selection and appointment, and there is no question of such high functionaries
not acting judicially as has been held by the Supreme Court in the subsequent nine Judge decision in the case of Supreme Court Advocates-on-
Record Association and another Vs. Union of India, which has been reaffirmed with further clarifications by another nine Judge Bench of the Apex
Court, in the case of In Re: Appointment and Transfer of Judges,
The Supreme Court, in the case of S.P. Gupta, after an elaborate discussion of every possible factor affecting the selection process, the
consultation process and the actual appointment of Judges and their transfer from one High Court to another, ultimately held in the conclusion
summarised in the judgment rendered by the majority in conclusion No.(10), thus:
In making all appointments and transfers, the norms indicated must be followed. However, the same do not confer any justificable right in any one.
Conclusion No.(II) drawn by the majority of Judges in that case reads as under:
Only limited judicial review on the grounds specified earlier is available in matters of appointments and transfers.
On a Presidential Reference, the question of the manner in which persons are to be selected and appointed, and after such appointments,
transferred from one High Court to another, as also the manner in which the selection process must proceed in the matter of appointment of Judges
to the Supreme Court, was once again considered by another nine Judge Bench, of the Apex Court In Re: Appointment and Transfer of Judges,
The Court, after extracting the relevant observations of the learned Judges who had decided the case of S.P. Gupta, concluded that those
observations clearly showed that merit is the pre-dominant consideration for the purpose of appointment to the higher judiciary in this country. The
selection process was re-examined and the Court laid down certain further guidelines with regard to the persons whose opinions are to be secured
and considered before the appointment or transfer was effected by the President. The participants in that process do not include the Bar, as the
Constitution does not, envisage any direct role for the Bar in the matter of selection and appointment of Judges to the High Court or the Supreme
Court.
Article 217(1) of the Constitution which is relevant read thus:
Appointment and conditions of the Office of a Judge of a High Court:- (1) Every Judge of a High Court shall be appointed by the President by
warrant under his band and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a
Judge other than, the Chief Justice, the Chief Justice of the High Court, and shall hold office, in the case of an additional or acing Judge, as
provided in Article 224, and in any other case, until he attains the age of sixty-two years......
It is unnecessary to reproduce the other parts of Article 217 of the Constitution for the present purpose.
The Constitutional functionaries who are required to be involved in the selection process in terms of Article 217 of the Constitution are the
President, the Chief Justice of India, the Governor of the State, and in case of appointment of a Judge other than the Chief Justice of High Court,
the Chief Justice of the High Court.
The Supreme Court has held that the reference to the Chief Justice of India is not to the individual, but to the Chief Justice symbolising the
considered view of the institution and that the weight to be attached to that view of the Chief Justice of India being the view of the institution which
he heads, is entitled to primacy. The recommendations made by the Chief Justice of India after due consultation with his colleagues, and the Chief
Justice of the High Court, is to have primacy in the matter of the final selection and appointment of the Judges of the High Court.
We have already extracted the relevant conclusion of the seven Judge Bench in the case of S.P. Gupta Vs. President of India and Others,
which limited the scope of judicial review in the appointment and transfer of Judges. That was reiterated by the later nine Judge Bench of the Apex
Court in the In re: Presidential Reference. In Re: Appointment and Transfer of Judges, paragraphs 28 and 29 of the judgment being relevant and
instructive for the purpose of this case, the same are extracted and set out below.
In the context of the judicial review of appointments, the majority judgment in the second Judges case said, ""Plurality of Judges in the formation
of the opinion of the Chief Justice of India, as indicated, is another in-built check against the likelihood of arbitrariness 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"". The judgement added, ""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, these matters are not justiciable on any other ground.
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 senior-most 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 recommendations for
appointment to 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 knowledge about that High Court have not been sought or considered by the Chief Justice of India and his two
senior-most puisne Judges, judicial review is available. Judicial review is also available when the appointee is found to lack eligibility.
Thus, the scope of judicial review of the appointment or recommendations for appointment is limited to the circumstances set out in paragraph
29 of the judgment of the Apex Court in the case of the Presidential Reference. In Re: Appointment and Transfer of Judges,
It is not the case of the petitioner that any one of those circumstances have arisen in this case. On the other hand, the submission was that the
matter is yet to receive the attention of the Chief Justice of India, and is yet to go through the process that is contemplated in terms of the
Constitution and the judgment of the Apex Court, viz., consultation by the Chief Justice of India with his two senior colleagues, as also of the
senior-most Supreme Court Judge who comes from the High Court. It is also not the case of the petitioner that the persons whose names are
stated to have been recommended for appointment lack the eligibility prescribed in Article 217 (2) of the Constitution.
Eligibility for the purpose of consideration is only the eligibility criteria set out in Article 217(2) of the Constitution. The person shall be a citizen
of India and shall have either held a judicial officer in the territory of India for ten years, or for at least ten years been an Advocate of a High Court,
or of two or more such Courts in succession.
Suitability is, however, a different matter. The judges of a suitability of a person for being appointed as a Judge of the High Court are the
Constitutional functionaries referred to in Article 217 of the Constitution and the other persons to whom reference has been made in the judgment
of the Apex Court In cases of S.P. Gupta and the Presidential Reference. It is for them to decide as to whether a person whose name has been
recommended, is or is not suitable for being appointed to the High Court.
No person outside the group of Constitutional functionaries referred to into the relevant Articles of the Constitution, and the Judges of the High
Court or of the Supreme Court to whom reference is made in the Judgment of the Supreme Court in the case of S.P. Gupta and Presidential
Reference (supra), can claim any right to impose his or her opinion on the suitability of those recommended, on those who are charged with the
responsibility of considering the suitability of the candidate.
No one in the subordinate judiciary can claim a right to be selected for appointment to the High Court on the basis of his or her seniority in the
cadre of District Judge. The field of choice is wide and those who are senior may not always, in the opinion of the Chief Justice, be found to be the
best among those available.
It is clear beyond any doubt that no one has a right to seek judicial review of the appointment process even before the matter has reached the
stage where the Honourable Chief Justice of India and the other Honourable Judges of the Apex Court are required to consider the names of the
persons recommended for appointment. It is not the case of the petitioner that the Constitutional functionaries at the level of the State viz.,
Governor and the learned Chief Justice have not been consulted. On the other hand, what was submitted as that there has been excessive
consultation. That is not a ground for judicial review.
The process of appointment, as held by the Apex Court in the case of S.P. Gupta (supra), is an integrated ''participatory consultative process'',
among the Constitutional functionaries for,
.....Selecting the best and most suitable persons available for appointment.
(emphasis supplied.)
Initiation of the proposal for appointment, in the case of the High Court must be and can only be by the Chief Justice of the concerned High
Court. The consultative process does not begin until the Chief Justice initiates the proposal. The responsibility cast on the Chief Justice is grave, as
the ''consultation'' after the proposal is initiated, is confined to the names so proposed. It is the prerogative of the Chief Justice to adopt such
measures as he deems appropriate, to inform himself about the merits and suitability of persons. Whether practising at the Bar, or in the
subordinate judiciary, before proposing persons whom he considers to be the ""best and most suitable"" among the persons available for
appointment.
19.(a). Future efficiency of the Court and public confidence in which the strength of the Court is rooted, is dependent on the soundness of the
proposals so initiated. Merit, as held by the Apex Court, has to be predominant consideration, in judging as to whether a person is the ""best and
most suitable"" for appointment as a Judge of the High Court.
It is unfortunate that the high constitutional office of the Judge of the High Court, which carries with it huge responsibility as protector and
guardian of the Constitution, and which office is to be held by persons whose merit and suitability are to be decided by very high constitutional
functionaries, President of India, the Chief Justice of India, as also the Chief Justice of the concerned High Court and the Governor of the State,
should have been made the subject matter of a petition of this nature at this stage. It is most improper to cast aspersions in the manner done in the
petition. The forum of the Court should not be misused.
The Writ Petition is, therefore, dismissed. Consequently, W.M.P.No.27957 of 1999 is dismissed. An oral application was made for certificate
of fitness to appeal to the Supreme Court. That application is rejected. CH/VCS.