Arijit Pasayat, J. - (1.) Judges, like Caesars wife, should be above suspicion is the focal point in this petition under Article 32 of the Constitution of India, 1950 (in short the Rs. Constitution) filed by Mr. Shanti Bhushan, a senior lawyer of eminence and former Law Minister and Ms. Kamini Jaiswal, an Advocate. The writ petition is stated to have been filed in public interest litigation seeking appropriate declaration and issuance of a writ of quo warranto or any other writ or direction quashing the appointment of respondent No. 2 as a Judge of the Madras High Court. The prayers read as follows:(a) restrain respondent No. 2 from functioning as a Judge of the Madras High Court. (b) Direct respondent No. 1 to produce all the records regarding the appointment/re-appointment of respondent No. 2 as Additional Judge and also as the permanent Judge; and (c) pass any other or further orders, as this Honble Court may deem fit and proper.
(2.) The grievances center around the appointment of respondent No. 2 as a permanent Judge by the Union of India (Department of Justice, Ministry of Law and Justice). It is stated that required norms have not been followed while appointing him as a permanent Judge and such appointment is in violation of the law as declared by this Court in Supreme Court Advocates- on-Record Association and Ors. v. Union of India, AIR 1994 SC 268 and Special Reference No. 1 of 1998 (1998) 7 SCC 739. The primary ground urged is that the opinion of the Chief Justice of India has to be formed collectively after taking into account the views of his senior colleagues who are required to be consulted by him for the formation of opinion and no appointment can be made unless it is in conformity with the final opinion of the Chief Justice of India formed in the aforesaid manner. In the oral arguments and the written submissions, reference has been made to various paragraphs of the aforesaid judgments and the memorandum dated 30th June, 1999 issued by the Minister of Law, Justice and Company Affairs, Union of India, laying down procedure to be followed in connection with the appointment and transfer of Judges of High Courts. It is submitted that while forming the opinion, the Chief Justice of India has to consult two senior-most Judges and some other Judges of the Supreme Court who are conversant with the affairs of the High Court concerned. The latter category includes the serving Supreme Court Judges who were either puisne Judges or Chief Justice of the concerned High Court though the concerned High Court may not be their parent High Court and they may have been transferred to the said High Court. It is, therefore, submitted that the appointment of respondent No. 2 as a permanent Judge as notified on 2.2.2007 has no sanctity in law. He was sworn as a permanent Judge on 3.2.2007.
(3.) The following paragraphs in the judgments referred to above have been relied upon. (1998) 7 SCC 739 (Special Reference No. 1 of 1998) 12. The majority view in the Second Judges case, AIR 1994 SC 268 is that in the matter of appointments to the Supreme Court and the High Courts, the opinion of the Chief Justice of India has primacy. The opinion of the Chief Justice of India is "reflective of the opinion of the judiciary, which means that it must necessarily have the element of plurality in its formation". It is to be formed "after taking into account the view of some other Judges who are traditionally associated with this function". The opinion of the Chief Justice of India "so given has primacy in the matter of all appointments". For an appointment to be made, it has to be "in conformity with the final opinion of the Chief Justice of India formed in the manner indicated". It must follow that an opinion formed by the Chief Justice of India in any manner other than that indicated has no primacy in the matter of appointments to the Supreme Court and the High Courts and the Government is not obliged to act thereon. ********** 29. The majority judgment in the Second Judges case 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 ( SCC p. 702, para 478) 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 Court.... 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 greatest 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 High Court and they were transferred there. The objective 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. 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 collegiums 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 Judges of the Supreme Court. ********** 32. 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 seniormost 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 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 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 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. ********** 41. We have heard with some dismay the dire apprehensions expressed by some of the counsel appearing before us. We do not share them. We take the optimistic view that successive Chief Justices of India shall henceforth act in accordance with the Second Judges case and this opinion. ********** 44 (8) The Chief Justice of India is obliged to comply with the norms and the requirement of the consultation process, as aforestated, in making his recommendations to the Government of India., AIR 1994 SC 268 Supreme Court Advocates-on-Record Assn. v. Union of India 460. The question of primacy of the role of the Chief Justice of India has to be examined not merely with reference to the fact that an appointment is an executive act, or with reference only to the comparative constitutional status of the different consultees involved in the process, but with reference also to the constitutional purpose sought to be achieved by these provisions, and the manner in which that purpose can be best achieved. ********** 466. It has to be borne in mind that the principle of non- arbitrariness which is an essential attribute of the rule of law is all pervasive throughout the Constitution; and an adjunct of this principle is the absence of absolute power in one individual in any sphere of constitutional activity. The possibility of intrusion of arbitrariness has to be kept in view, and eschewed, in constitutional interpretation and, therefore, the meaning of the opinion of the Chief Justice of India, in the context of primacy, must be ascertained. A homogenous mixture, which accords with the constitutional purpose and its ethos, indicates that it is the opinion of the judiciary Rs. symbolised by the view of the Chief Justice of India which is given greater significance or primacy in the matter of appointments. In other words, the view of the Chief Justice of India is to be expressed in the consultative process as truly reflective of the opinion of the judiciary, which means that it must necessarily have the element of plurality in its formation. In actual practice, this is how the Chief Justice of India does, and is expected to function so that the final opinion expressed by him is not merely his individual opinion, but the collective opinion formed after taking into account the views of some other Judges who are traditionally associated with this function. 467. In view of the primacy of judiciary in this process, the question next, is of the modality for achieving this purpose. The indication in the constitutional provisions is found from the reference to the office of the Chief Justice of India, which has been named for achieving this object in a pragmatic manner. The opinion of the judiciary Rs. symbolised by the view of the Chief Justice of India, is to be obtained by consultation with the Chief Justice of India; and it is this opinion which has primacy. 468. The rule of law envisages the area of discretion to be the minimum, requiring only the application of known principles or guidelines to ensure non-arbitrariness, but to that limited extent, discretion is a pragmatic need. Conferring discretion upon high functionaries and, whenever feasible, introducing the element of plurality by requiring a collective decision, are further checks against arbitrariness. This is how idealism and pragmatism are reconciled and integrated, to make the system workable in a satisfactory manner. Entrustment of the task of appointment of superior judges to high constitutional functionaries; the greatest significance attached to the view of the Chief Justice of India, who is best equipped to assess the true worth of the candidates for adjudging their suitability; the opinion of the Chief Justice of India being the collective opinion formed after taking into account the views of some of his colleagues; and the executive being permitted to prevent an appointment considered to be unsuitable, for strong reasons disclosed to the Chief Justice of India, provide the best method, in the constitutional scheme, to achieve the constitutional purpose without conferring absolute discretion or veto upon either the judiciary or the executive, much less in any individual, be it the Chief Justice of India or the Prime Minister. ********** 478(5)- The opinion of the Chief Justice of India, for the purpose of Articles 124(2) and 217(1), so given, has primacy in the matter of all appointments; and no appointment can be made by the President under these provisions to the Supreme Court and the High Courts, unless it is in conformity with the final opinion of the Chief Justice of India, formed in the manner indicated. ********** 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 constitutional 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 litigation, in spite of the caution in S.P. Gupta while expanding the concept of locus standi, was adverted to recently by a Constitution Bench in Krishna Swami v. Union of India, AIR 1993 SC 1407 . 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 appointment, 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 decision- making.;