Appointment Of Judges From The Bar: Consideration By Collegium Is Not Based Only On Appearance Of Advocate Concerned: Madras HC [Read Judgment]

“Consideration by the Collegium is not based only on appearance of the advocate concerned, but on a whole lot of other facts, based on information, supported by materials on record. It is the strength of the materials on record, which render a decision unquestionable.”

The Madras High Court recently rejected a plea challenging the appointment of Justice Subramonium Prasad as Additional Judge of the High Court.

The Challenge

Advocate M Radhakrishnan had approached the high court seeking a declaration that the appointment of Justice Subramonium Prasad as Additional Judge of the High Court with effect from June 4, 2018, is null and void.

Advocate Radhakrishnan, who appeared in person before a bench headed by Chief Justice Indira Banerjee, submitted that he has no objection to the writ petition being heard by a CJ-headed bench since the decision to recommend was taken by a collegium of which the present Chief Justice was not party and long before the present Chief Justice assumed office as a judge of this court.

Stressing on Article 217, the petitioner contended that Justice Subramonium has not practised in Madras High Court or in any court subordinate to it, for at least 10 years, and hence was ineligible. He further contended that if an advocate has not practised in the high court, it cannot be said that there has been proper consideration by the collegium which recommends the advocate for appointment as a judge since the members of the collegium would have had no occasion to assess the performance of the advocate concerned.

The bench, also comprising Justice PT Asha, observed that though eligibility of an appointee could fall within the scope of judicial review, the question as to who should be elevated essentially involves the aspect of suitability and stands excluded from the scope of judicial review.

“There can be no doubt that the appointment of a Judge is a serious business and is recognized as a very vital component of the independence of the Judiciary. It is absolutely necessary to have Judges who are prepared to fashion new tools, forge new methods, innovate new strategies and evolve a new jurisprudence; to have Judges who are judicial statesmen with a social vision and a creative faculty and who have a deep sense of commitment to the Constitution with an activist approach and obligation for accountability, not to any party in power nor to the opposition nor to the classes which are vociferous but to the half-hungry millions of India who are continually denied their basic human rights. We certainly need Judges who are alive to the socio-economic realities of Indian life, who are anxious to wipe every tear from every eye, who have faith in the constitutional values and who are ready to use law as an instrument for achieving the constitutional objectives,” the bench said observing that there is no reason at all to suppose that appointment of Justice Subramonium Prasad has not been made seriously or has been made ignoring these factors.

Appearance not sole basis for consideration

Rejecting the argument that there has not been proper consideration by the collegium of the candidature of the appointee, since they had no occasion to assess his performance, the bench observed: “Consideration by the Collegium is not based only on appearance of the advocate concerned, but on a whole lot of other facts, based on information, supported by materials on record. It is the strength of the materials on record, which render a decision unquestionable.”

If consideration were only to be based on Court appearance, it would be impossible for any Collegium to consider advocates practising in Courts subordinate to the High Court, or even advocates practising in the same High Court, with very good practise, but inadequate number of appearances before the Chief Justice or Collegium Judges, for a meaningful assessment of their suitability to be elevated to the Bench, the court said while dismissing the writ petition holding that there is no patent contravention of Article 217(2) of the Constitution in the appointment.

Read The  Judgment Here