IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04/11/2003
CORAM
THE HONOURABLE MR. JUSTICE B. SUBHASHAN REDDY, CHIEF JUSTICE
and
THE HONOURABLE MR. JUSTICE K. GNANAPRAKASAM
W.P.SR. No.130419 OF 2003
and
W.P.M.P. No.37713 of 2003 and W.P.M.P. SR No.130422 of 2003
(The Order of the Court was made by the Honourable The Chief Justice)
W.P.SR. No. 130419 of 2003 has been filed questioning the
appointment of the fifth respondent as a Judge of this Court on the ground
that he did not possess the requisite qualifications of uprightness while
conducting cases as an advocate.
2. The recommendation for appointment of the fifth respondent as
a Judge of this Court has emanated from this Court and it went through several
constitutional functionaries and ultimately, the collegium of the Supreme
Court, consisting of the Honourabl the Chief Justice of India and two
immediate senior Honourable Judges, had approved the recommendation. But the
Central Government raised some queries and again, the collegium of the Supreme
Court, headed the Honourable the Chief Justice of India, had r eiterated the
recommendation, which was accepted by the Central Government and forwarded to
His Excellency the President of India for issuing orders of appointment. It
is stated that His Excellency the President of India had returned the said
proposals. Again, the collegium of the Supreme Court, headed by the
Honourable the Chief Justice of India, has reiterated the same and the Central
Government has accepted the same and forwarded it to His Excellency the
President of India and the appointment orders have been issued and warrant is
awaited.
3. The petitioners are advocates. They submit that in spite of
the representation 16.7.2003 making serious allegations against the fifth
respondent being made to His Excellency the President of India and the
Honourable the Chief Justice of India, agai the name of the fifth respondent
has been cleared and this ought not to have been cleared. They also state
that even after the said appointment, a representation has been made on
31.10.2003 and it is of no avail and as such, this Court, in exercise of its
power under Article 226 of the Constitution of India, should issue a Mandamus
forbearing the respondents 1 to 4 from appointing or swearing-in the fifth
respondent as a Judge of Madras High Court or any other High Court without
holding an enquiry int o the allegations made against him by the petitioners
and others. Mr. Kannabiran, learned senior counsel, appeared for the
petitioners and made his submissions.
4. The power of judicial review and the extent of justiciability
has been explained authoritatively by a Constitution Bench of the Supreme
Court consisting of 9 Judges in S.C. ADVOCATES-ON-RECORD ASSN. v. UNION OF
INDIA (1993) 4 S.C.C. 441). In paragr hs 480, 481 and 482, the Supreme Court
ruled thus,
“480. The primacy of the judiciary in the matter of appointments and its
determinative nature in transfers introduces the judicial element in the
process, and is itself a sufficient justification for the absence of the need
for further judicial review of those decisions, which is ordinarily needed as
a check against possible executive excess or arbitrariness. Plurality of
judges in the formation of the opinion of the Chief Justice of India, as
indicated, is another inbuilt check against the likelihood o f arbitrariness
or bias, even subconsciously, of any individual. The judicial element being
predominant in the case of appointments, and decisive in transfers, as
indicated, the need for further judicial review, as in other executive
actions, is eliminat ed. The reduction of the area of discretion to the
minimum, the element of plurality of judges in formation of the opinion of the
Chief Justice of India, effective consultation in writing, and prevailing
norms to regulate the area of discretion are suffi cient checks against
arbitrariness.
481. These guidelines in the form of norms are not to be construed as
conferring any justiciable right in the transferred Judge. Apart from the
constitutional requirement of a transfer being made only on the recommendation
of the Chief Justice of India, the issue of transfer is not justiciable on any
other ground, including the reasons for the transfer or their sufficiency.
The opinion of the Chief Justice of India formed in the manner indicated is
sufficient safeguard and protection against any arbitra riness or bias, as
well as any erosion of the independence of the judiciary.
482. This is also in accord with the public interest of excluding
these appointments and transfers from litigative debate, to avoid any erosion
in the credibility of the decisions, and to ensure a free and frank expression
of honest opinion by all the co nstitutional functionaries, which is essential
for effective consultation and for taking the right decision. The growing
tendency of needless intrusion by strangers and busybodies in the functioning
of the judiciary under the garb of public interest liti gation, in spite of
the caution in S.P. Gupta (1981 Supp SCC 87) while expanding the concept of
locus standi, was adverted to recently by a Constitution Bench in Krishna
Swami v. Union of India (1992) 4 SCC 605). 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 appoi ntment, 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 decis
ion-making.”
5. From the above, it is clear that the enumerated grounds of
challenge for judicial review are (i) want of consultation with the named
constitutional functionaries; (ii) lack of any condition of eligibility in the
case of appointment; or (iii) nsfer being made without the recommendation of
the Honourable the Chief Justice of India. The third ground is not relevant
here. In so far as the first two aspects are concerned, as the Supreme Court
has not only firstly approved the recommendation for appointment of the fifth
respondent as a Judge of Madras High Court but also reiterated twice and as
the said recommendation has finally culminated into the appointment, by the
order of His Excellency the President of India, the matter is not justiciabl e
in view of the law of the land laid down by the Supreme Court in the case of
S.C. ADVOCATES-ON-RECORD ASSN. v. UNION OF INDIA (mentioned supra).
6. These petitions are thus dismissed.
bh/