Supreme Court disposes of petition challenging Madras HC judges' list; holds that suitability of a recommendee and the consultation process are not subject to judicial review

The Supreme Court today disposed of a petition filed by lawyers assailing the selection of 12 persons for appointment as judges to the Madras High Court.

A Bench comprising of 3 judges led by Justice B S Chauhan held that the lawyers could not challenge the suitability of the candidates at the stage of recommendation made by the Chief Justice of a high court for appointment of judges. Relying on the dictum laid down in Mahesh Chandra Gupta v. Union of India, the Court said "..suitability of a recommendee and the consultation are not subject to judicial review"

Earlier, the collegium of the Madras High Court consisting of its Chief Justice and two senior most Judges vide Resolution dated 12.12.2013 recommended a list of 12 persons comprising of ten advocates and two District Judges for consideration by the collegium of Supreme Court for appointment as Judges of the Madras High Court. The said list was forwarded to the Ministry of Law and Justice, Government of India, the Supreme Court of India as well as to the Government of Tamil Nadu on 14.12.2013 as required under the law.

At this point, the writ petitioner, Mr. R. Gandhi, Senior Advocate, filed Writ Petition No. 375 of 2014 before the Madras High Court seeking a direction to the Union of India and the Supreme Court collegium to return the said list as the recommendees therein were not suitable as per the assessment of the writ petitioner and other members of the Bar for elevation. More so, the collegium of the High Court did not recommend the name of the eligible advocates belonging to different castes. The petitioner had averred that the Hon'ble Chief Justice and first senior most Judge did not hail originally from Tamil Nadu, so they were unable to understand and appreciate the complex social structure of the State of Tamil Nadu.

The Division Bench of the Madras High Court entertained the writ petition and passed the orders dated 8.1.2014 and 9.1.2014. According to the first order, an interim direction was issued directing the Ministry of Law and Justice, Government of India to maintain the status quo, while vide the second order dated 9.1.2014, it restrained the Government of Tamil Nadu from making any recommendation in this regard and further to maintain the status quo till 21.1.2014. Aggrieved, the Madras High Court through Registrar General preferred Special Leave Petition (C) Nos. 892-893 of 2014, wherein after hearing the learned Attorney General, appearing for the petitioner – High Court, the Apex Court on 13.1.2014 passed an order transferring the said cases to the Apex Court for being heard by a Bench of minimum three judges, and restrained the High Court from proceeding  further with the matter in W.P.No.375/2014 and also vacated the interim order passed by the High Court to maintain status quo regarding the process of the recommendations.

When the matter came up for hearing on 18.2.2014, the petitioner made a statement that the Supreme Court collegium had returned the entire list to the Madras High Court for reconsideration, thereby rendering the matter infructuous. The Court accordingly passed the order dismissing the Writ Petition as having become infructuous. However, two other writ petitions were filed subsequently in the Madras High Court with respect to the same subject matter, pursuant to which the High Court filed petitions seeking to transfer those cases to the Apex Court .

Since the order dismissing the writ petition as infructuous was not signed, the matter was posted to 25.2.2014. On the said date of posting, the Attorney General and other Advocates appearing in the cases before the Apex Court insisted that matters must be heard at least to decide the issue of maintainability, otherwise in future, it would be impossible to complete the process of appointment of Judges in the High Court, particularly when sitting Judges of the High Court also have started appearing before the Bench hearing the case in support of the contentions of the writ petitioners.

In response, the senior counsel appearing for the petitioners, Shri. Prabhakaran still insisted that writ petitions be dismissed as having become infructuous because of the subsequent developments. The Attorney General as well as the Solicitor General submitted before the Court that judicial review on assessing the suitability is not provided for as it is restricted only to the eligibility. As there is no challenge to the fact that there had been a proper consultation by the Hon'ble Chief Justice of Madras High Court along with his other Judges members of the collegium, such judicial review is uncalled for, and accordingly prayed for a dismissal of the writ petition.

The Court emphasized that "the question of an effective representation on the Bench and the qualitative assessment of elevations are not  only to be governed by the magnitude of the practice of a lawyer or only his social or legal background. These are factors to be considered alongwith the other qualities of intellect and character including integrity, patience, temper and resilience. The wisdom and legal learning of a particular individual coming from a particular social background may have leanings and individual judges are not un-afflicted by their notions of social, economic and political philosophy, but such matters fall within the realm of suitability to be considered by the collegium making recommendations or accepting the same for appointment as a Judge. The issue of a broad representation has also to be looked into from the point of view that it is necessary to ensure that a more representative Bench does not become a less able Bench."  

The Court further said "Appointments cannot be exclusively made from any isolated group nor should it be pre-dominated by representing a narrow group. Diversity therefore in judicial appointments to pick up the best legally trained minds coupled with a qualitative personality, are the guiding factors that deserve to be observed uninfluenced by mere considerations of individual opinions. It is for this reason that collective consultative process as enunciated in the aforesaid decisions has been held to be an inbuilt mechanism against any arbitrariness."

On the issue of maintainability, the Apex Court held that judicial review is permissible only on assessment of eligibility and not on suitability. The Court also said that the petitioners took a premature step by filing writ petitions seeking a direction to Union of India to return the list sent by the collegium of the Madras High Court without further waiting its consideration by the Supreme Court collegium. The Court went on to say that even after the President of India accepts the recommendations and warrants of appointment are issued, the Court is competent to quash the warrant as has been done in this case of Shri Kumar Padma Prasad v. Union of India & Ors., AIR 1992 SC 1213 wherein the recommendee was found not possessing eligibility for the elevation to the High Court as per Article 217(2).

The Court further found fault with the petitioners for adopted an unwarranted short cut knowing it fully well that on the ground of the suitability, the writ petitions were not maintainable and said that the writ petitioners or the members of the Bar could have approached the Chief Justice of India, or the Law Minister instead.

The Apex Court described the conduct of a sitting Judge who barged into the Court room where the Division Bench was hearing the case as 'unexpected, uncharitable and ungenerous, and … indecorous."

Holding that the writ petitions were pre-mature, the Apex Court disposed of the petitions before it in the light of the above referred observations.