Holding

Eligibility for appointment as a High Court judge under Article 217(2)(b) is satisfied by enrolment (right to practice) and the period of service in a tribunal counted under Explanation (aa), and the content of the collegial consultation is not justiciable.

Summary

Mahesh Chandra Gupta filed a writ petition challenging the appointment of respondent No.3 as an Additional Judge of the Allahabad High Court, alleging that he lacked the ten‑year practice requirement under Article 217(2)(b) of the Constitution. The Court examined whether "actual practice" or merely the "right to practice" (enrolment) satisfies the eligibility criterion, and whether the period served as a member of the Income Tax Appellate Tribunal counts under Explanation (aa). It held that enrolment confers a right to practice, which meets the eligibility requirement, and that the tribunal service can be added to the qualifying period. The Court also clarified that the suitability assessment and the substance of the collegial consultation are matters of opinion and not subject to judicial review, though a lack of eligibility or ineffective consultation would be reviewable. Finding that the respondent satisfied the eligibility test and that the consultation was effective, the Court dismissed the transferred case.

Issues considered

Whether "actual practice" or "right to practice" is the constitutional prerequisite for eligibility under Article 217(2)(b).
Whether the appointment of respondent No.3 violated the eligibility criteria of Article 217(2)(b).
Whether the consultative process between the Supreme Court Collegium and the High Court Collegium was effective and amenable to judicial review.
Whether the content of the consultation process can be subject to judicial review.
Interpretation of the expression "advocate of a High Court" in light of the Advocates Act, 1961 and earlier statutes.

Legislation cited

Advocates Act, 1961s. 16, s. 2, s. 30
Bar Councils Act, 1926s. 2, s. 8
Government of India Act, 1935s. 220(3)(a)

Subjects

Article 217eligibility vs suitabilityjudicial reviewhigh court judge appointmentadvocate of a High Courtcollegium consultationquo warrantoExplanation (aa)Advocates Act 1961Government of India Act 1935

Judgment

(2009] 10 S.C.R. 921

MAHESH CHANDRA GUPTA A
v.
UNION OF INDIA & ORS.
(Transferred Case (C) No. 6 of 2009) •

JULY 6, 2009
B
[S.H. KAPADIA AND AFTAB ALAM, JJ.]

CONSTITUTION OF /NOIA, 1950:

Articles 217(1), 217(2)(a}, (b), Explanation (aa) and c
Article 226 rlw Article 139-A - Appointment of Judge of High
Court - 'Eligibility' and 'suitability' - Justiciability of - HELD:
Process of judging the fitness of a person to be appointed a
High Court Judge and the process of consultation fall in the
realm of 'suitability' under Article 217(1 }, whereas the 0
'eligibility qualification' falls under Article 217(2) - Articles
217(1) and 217(2) operate in different spheres - 'Eligibility'
is a matter of fact whereas 'suitability' is a matter of opinion -
'Eligibility' is an objective factor, which when put in question,
could fall within the scope of judicial review - In cases E
involving lack of 'eligibility' writ of quo warranto would lie - The
'suitability' and process of consultation stand excluded from
purview of judicial review - Once there is consultation, the
content of that consultation is beyond the scope of judicial
review, though lack of consultation could fall within the scope
of judicial review - Thus, judicial review lies only in cases of F
"lack of eligibility" and "lack of effective consultation" - It will
not lie in content of consultation - Supreme Court Rules,
1996 - Or.36-A, r.1. - Administrative Law - Judicial Review.

Articles 217(1) and 217(2) - Appointment of High Court G
Judge - Consultation between Supreme Court Collegium
and High Court Collegium - HELD: Supreme Court
Collegium does not sit in appeal over recommendations of
'/ High Court Collegium - Each Col/egium constitutes a
921 H
922 SUPREME COURT REPORTS [2009] 10 S.C.R.

A participant in the participatory consultative process - Each
constitutional functionary involved in the participatory
consultative process discharges a participatory constitutional
function and there is no hierarchy between these constitutional
functionaries - The concept of primacy and plurality is in
B effect primacy of opinion of Chief Justice of India formed
collectively.

Article 217(2)(b), Explanation(aa) - 'Advocate of a High
Court'-- HELD: The substance of Article 217(2)(b) is that it
prescribes eligibility criteria based on "right to practice" and
c not "actual practice" - The legal implication of the Advocates
Act, 1961 is that any person whose name is enrolled on the
State Bar Council would be regarded as "an advocate of the
High Court" -Advocates Act, 1961 - Legal Practitioners Act,
1879 - Indian Bar Councils Act, 1926 - Government of India
D Act, 1935 - s.220(3)(a).

Article 217(2)(b) rlw Explanation (aa) - Member of /TAT
- Elevation of, as High Court Judge - Computation of period
as an advocate - HELO: For eligibility purpose, clause (aa)
E of Explanation to Article 217(2) rlw sub-clause(b) of Clause
(2) of Article 217 would apply to Members of /TAT. Incumbent
having been enrolled as an advocate of High Court and
worked for 11 years as a Member of ITAT, satisfies the
\
'eligibility qualification' as laid down in Article 217(2)(b) rlw ~

F Explanation (aa) - Bio data of incumbent was placed before
the Col/egiums - On facts, there was effective consultation -
Since consultation process stood complied with, its content
was not amenable to judicial review.

Administrative Law:
G
Doctrine of trust - Appointment of Judges to Supreme
Court and High Courts - HELD: Is an executive function of
the President of India - 'Continuity of an institution' is an
important constitutional principle in institutional decision-
H making process which needs to be insulated from
MAHESH CHANDRA GUPTA v. UNION OF INDIA & 923
ORS.

opinionated views based on misinformation - 'Trust' in the A
institutional decision making process is an important element
in the process of appointment of Judges to Supreme Court
and High Courts - Affidavit - Constitution of India, 1950 -
Articles 124 and 217.
B
Words and Phrases:

Expression 'advocate of a High Court' occurring in Article
.....
217(2)(b) of Constitution of India - Connotation of.

Expressions "actual practice" and "right to practice" with c
. reference to Advocates Act- Connotation of.

Word "standing" as occurring in s.220(3)(a) of
Government of India Act, 1935 - Connotation of.

A writ petition was filed before the High Court D
questioning the appointment of respondent no.3 as an
Additional Judge of the Allahabad High Court and for
issuance of a writ of quo warranto directing .respondent
no. 3 to show the authority of his office and to justify
constitutionality of his appointment as a Judge of the E
Allahabad High Court. It was stated in the writ petition that
respondent no. 3 had not practised as an Advocate for
at least 10 years in the Allahabad High Court nor had he
held a judicial office belonging to the judicial service
subordinate to Allahabad High Court. Subsequently, on F
a transfer petition having been filed before the Supreme
Court, the writ petition was transferred to and heard by
the Supreme Court as the transferred case.

The question for consideration before the Court
was: whether "actual practice" as against "right to G
.. practice" is the pre-requisite constitutional requirement
of the eligibility criteria under Article 217(2)(b) of
Constitution of India, 1950.

Dismissing the transferred case, the Court H
924 SUPREME COURT REPORTS [2009] 10 S.C.R.

A HELD: 1.1. There is a basic difference between
"eligibility" and "suitability". The process of judging the
fitness of a person to be appointed as a High Court
Judge falls in the realm of "suitability'', and similarly, the
process of consultation falls in the realm of 'suitability';
B whereas 'eligibility' comes under threshold limit or entry
point qualification. Thus, evaluation of the worth and
merit of a person is a matter entirely different from
eligibility of a candidate for elevation. This dichotomy ,...
between suitability and eligibility finds place in Article
c 217(1) in juxtaposition to Article 217(2). The word
"consultation" finds place in Article 217(1); whereas the
word "qualify" finds place in Article 217(2). [Para 10] (948-
C-E]

Constitutional Law of India by H.M. Seervai, Fourth
D Edition, at page 2729, referred to. •

1.2. The appointment of a Judge is an executive
function of the President of India. Article 217(1) prescribes
the constitutional requirement of "consultation". Fitness
E of a person to be appointed a Judge of the High Court is
evaluated in the consultation process. Article 217(2)
prescribes a threshold limit or an entry point eligibility for
a person to become qualified to be a High Court Judge;
whereas Article 217(1) provides for a procedure to be
F followed before a person could be appointed as a High
Court Judge, which procedure is designed to test the
fitness of a person to be so appointed: his character, his
integrity, his competence, his knowledge and the like.
Thus, Article 217(1) and Article 217(2) operate in different
spheres. Article 217(1) answers the question as to who
G
"should be elevated"; whereas Article 217(2) deals with
the question as to who "could be elevated". [Para 11]
(949-D-G]

Basu's Commentary on the Constitution of India, Sixth
H Edition, p. 234, referred to.
MAHESH CHANDRA GUPTA v. UNION OF INDIA & 925
ORS.

1.3. Enrolment of an advocate under the Advocates A
Act, 1961 comes in the category of who "could be
elevated", which is specifically answered by Article
217(2); whereas the number of years of actual practice
put in by a person, which is a significant factor, comes
in the category as to who "should be elevated", which B
essentially involves the aspect of "suitability" under
Article 217(1). [Para 11] [949-G; 950-A-B]
~
1.4. The word "standing" connotes the years in which
a person is entitled to practice and not the actual years
put in by a person in practice. Under s.220(3)(a) of the
c
Government of India Act, 1935, qualifications were
prescribed for appointment as a Judge of a High Court.
A Barrister of at least ten years standing was qualified to
be appointed as a Judge of the High Court. "Right to
practice" has been equated with "entitlement to D
practice"*. The concept of "actual practice" will fall under
Article 217(1); whereas the concept of right to practice or
entitlement to practice will fall under Article 217(2)(b). The
former will come in the category of "suitability", the latter
will come in the category of "eligibility". [Para 16] [951- E
H; 952-A-B; 952-C-D]

*Re. Lily Isabel Thomas, AIR 1964 SC 855, referred to.
{

Halsbury's Laws of England, Fourth Edition, Reissue,
F
Volume 3(1), paragraphs 351 and 394 - referred to.

2.1. The expression "an advocate of a High Court" in
Article 217(2)(b) was placed in the Constitution at a time
when the practice of advocates was governed by the
Indian Bar Councils Act, 1926. Under s.220(3) of the G
Government of India Act, 1935 various categories of
persons were qualified for appointment as a Judge of the
High Court which included a Barrister, a Member of
Indian Civil Service etc. To confine the qualification for
appointment as a Judge of a High Court to only one H
926 SUPREME COURT REPORTS [2009] 10 S.C.R.

A instead of four categories mentioned in s.220(3) of the
...
1935 Act, the Constitution framers have, in Article
217(2)(b), used only one consolidated expression,
namely, "an advocate of a High Court". This expression
finds place even in the Advocates Act, 1961, which has
B been en.icted in order to consolidate various categories
into one class, namely, "advocates". From the legal
history of the Legal Practitioners Act, 1879, the Indian Bar
Councils Act, 1926, Government of India Act, 1935 and the
Advocates Act 1961, it becomes clear that they all deal
C with a person's right to practice or entitlement to practice.
Thus, the expression "an advocate of a High Court" as
understood, both, pre and post 1961, referred to
person(s) right to practice. Therefore, actual practice
cannot be read into the qualification provision, namely,
Article 217(2)(b). The legal implication of the 1961 Act is
0
that any person whose name is enrolled on the State Bar
Council would be regarded as "an advocate of a High
Court". The substance of Article 217(2)(b) is that it
prescribes eligibility criteria based on "right to practice"
and not "actual practice". [Para 17, 22, 23, and 28] [962-
E F-H; 962-G-H; 966-C-E]

Durgeshwar Dayal Seth vs. Secretary Bar Council AIR
1954 Allahabad 728; Re.: Devasaran Lall Sinha AIR 1946
Pat. 369; 0. N. Mohindroo v. Bar Council of Delhi and Ors.
F AIR 1968 SC 888; District Judge, Anantpur vs. K. V. Reddi
and Ors. AIR Mad. 144; Nihal Chand Shastri vs. Dilawar Khan
and Ors. AIR 1933 Allahabad 417 and Prof. C.P. Agarwal v.
G.D. Parikh AIR 1970 SC 1061, referred to.

G 2.2. Explanation (aa) to Article 217(2) is so appended
as to compute the period during which a person has
been an advocate, any period during which he has held
the office of a Member of a Tribunal after he became an .
advocate. If a person has been an advocate for ten years
before becoming a Member of the Tribunal, Explanation
H
MAHESH CHANDRA GUPTA v. UNION OF !NOIA & 927
ORS.

(aa) would not be attracted because being an advocate A
for ten years per se would constitute sufficient
qualification for appointment as a Judge of the High
Court. [Para 15] [951-E-G]

Constitutional Law of India by H.M. Seervai, First Edn.
8
P. 1012, referred to.

2.3. The very purpose for enactment of Article
217(2)(a) ar:id Article 217(2)(b) is to provide for a mix of
those from the Bar and those from Service who have the
past experience of working as judicial officers/officers in C
Tribunals. This was the object behind a policy decision
taken in the Chief Justices' Conference of 2002. The
object of adding Explanation (aa) is to complement
Explanation (a) appended to Article 217(2) and, together,
they have liberalised the source of recruitment for 0
appointment to the High Court. Therefore, for eligibility
purposes clause (aa) of the Explanation read with sub-
clause (b) of clause (2) of Article 217 would apply to
Members of ITAT, in the matter of computation of the
prescribed period for an advocate to be eligible for being E
appointed as a High Court Judge. This aspect of
"eligibility" has nothing to do with "suitability". (Para 33]
[973-C-E] •

3.1. As regards justiciability of appointments under F
Article 217(1), the Court in the instant case is concerned
with the mechanism for giving effect to the constitutional
Justification for judicial review. "Eligibility" is a matter of
fact; whereas "suitability" is a matter of opinion. When
'eligibility' under Article 217(2) is put in question, it could
fall within the scope of judicial review. In cases involving G
lack of "eligibility" writ of quo warranto would certainly
lie: one reason being that "eligibility" is not a matter of
subjectivity. However, "suitability" or "fitness" of a
person to be appointed a High Court Judge - his
character, his integrity, his competence and the like - falls H
928 SUPREME COURT REPORTS [2009] 10 S.C.R.

A under Article 217(1) (a), and being a matter of opinion,
stands excluded from the purview of judicial review. The
difference between judicial review and merit review is
vital. Consultation forms part of the procedure to test the
fitness of a person to be appointed a High Court Judge
B under Article 217(1). Once there is consultation, the
content of that consultation is beyond the scope of
judicial review, though 'lack of effective consultation'
could fall within the scope of judicial review.
Consequently, judicial review lies only in two cases,
C namely, "lack of eligibility" and "lack of effective
consultation". It will not lie on the content of consultation.
[Para 11, 30 and 31] [950-A-C; 970-G-F; 971-G-H]

Supreme Court Advocates-on-Record Association and
Ors. v. Union of India 1993 (4) SCC 441 and Re. Special
D Reference No. 1 of 1998 (1998) 7 sec 739, relied on.

Constitutional Law of India by H.M. Seervai First Edition,
p. 1012, referred to.

E 3.2. Appointment under Article 217(1), vis-a-vis
qualification under Article 217(2), is the function of
participatory integrated process in which there is
deliberatipn and consultation between the Supreme
Court Collegium and the High Court Collegium. In cases
of consensus, the question of primacy does not arise.
F When a joint venture process is earmarked as a
participatory consultative process, the primary aim of
which is to reach an agreed decision, one cannot term
the Supreme Court Collegium as superior to High Court
Collegium. The Supreme Court Collegium does not sit in
G appeal over the recommendation of the High Court
Collegium. Each Collegium constitutes a participant in
the participatory consultative process. The concept of
primacy and plurality is in effect primacy of the opinion
of the Chief Justice of India formed collectively. The
H
MAHESH CHANDRA GUPTA v. UNION OF INDIA & 929
ORS.

concept of plurality of Judges in the formation of the A
.. I
opinion of the CJI is one of inbuilt checks against the
' likelihood of arbitrariness or bias. [Para 31) [970-G-H; 971-
A-BJ

3.3. It is important to note that each constitutional B
functionary involved in the participatory consultative
process is given the task of djsch~rging a participatory
constitutional function; there is no question of hierarchy
J
... between these constitutional functionaries. Ultimately, the
object of reading such participatory consultative process
into the constitutional scheme is to limit judicial review
c
restricting it to specified areas by introducing a judicial
process in making of appointment(s) to the higher
judiciary. These are the norms, apart from modalities, laid
down in the case of Supreme Cowt Advocates-on-Record
Association* and also in the judgment in Re. Special D
Reference No. 1 of 1998. [Para 31) [971-E-G]

*Supreme Cowt Advocates-on-Record Association and
Ors. v. Union of India 1993 (4) SCC 441 and Re. Special
Reference No. 1 of 1998 (1998) 7 SCC 739, referred to. E
4.1. So far as appointment of respondent No. 3 is
concerned, provisions of Article 217(2)(b) read with
Explanation (aa) would be relevant. Respondent No.3
worked as a Member of ITAT between the period
F
3.12.1997 and 6.8.2008 (11 years); prior thereto, he
worked as Additional Law Officer (Director), Law
Commission of India; he was admittedly enrolled as an
Advocate of the High Court on 13.9.1975. Applying the
principles both, with regard to entitlement to practice and
computability of the period during which respondent no. G
3 worked in ITAT, he satisfied the "eligibility qualification"
~
prescribed in Article 217(2)(b), read with Explanation (aa),
and stood qualified for appointment as a Judge of the
Allah,abad High Court. Therefore, the case does not suffer
from the vice of lack of eligibility. The matter has arisen H
930 SUPREME COURT REPORTS (2009] 10 S.C.R.

A from the writ of quo warranto and not from the writ of
certiorari. [Para 32] [972-B-D] ,.
4.2. As regards the plea regarding lack of effective
consultation, the bio-data of respondent no. 3 was placed
before the Collegiums. On a meticulous scrutiny of the
B
confidential files, it is found that the content of the Report
submitted by the Sub-committee containing information
regarding the lack of actual practice as an advocate of
the High Court and the working of respondent no. 3 as a
Member of ITAT during his nascent years in office was
c brought to the notice of the Supreme Court Collegium,
albeit from a different channel. On facts, there was
effective consultation. Since the consultation process
stood complied with, its content was not amenable to
judicial review. Whether respondent no. 3 was "suitable"
D to be appointed a High Court judge or whether he
l
satisfied the fitness test is beyond justiciability. The
matter has been decided strictly on the basis of the
constitutional scheme in the matter of appointments of
High Court Judges as laid down in the decisions of the
E Supreme Court*. [Para 32, 34 and 35] [972-D-E; 976-E-H;
977-A-B]

*Supreme Court Advocates-on-Record Association and
Ors. v. Union of India 1993 (4) SCC 441 and Re. Special '
F Reference No. 1 of 1998 (1998) 7 SCC 739, relied on.
5. "Continuity of an institution" is an important
constitutional principle in the institutional decision-
making process which needs to be insulated from
opinionated views based on misinformation. "Trust" in
G the decision-making process is an important element in
the process of appointment of Judges to the Supreme
Court and the High Courts, which is the function of an
integrated participatory consultative process. The Court
is constrained to make this remark in view of baseless
H allegations made in the supplementary affidavit dated
MAHESH CHANDRA GUPTA v. UNION OF INDIA & 931
ORS.

15.4.2009 against institutional decision making process. A
-1 [Para 36] [977-8-0]

Case Law Reference:
AIR 1970 SC 1061 referred to para 7
(1998) 1 sec 739 relied on para 7 B
1993 (4) sec 441 referred to para 8
AIR 1964 SC 855 referred to para 16
AIR 1968 SC 888 referred to para 18
AIR 1954 Allahabad 728 referred to para 18 c
AIR 1946 Pat. 369 referred to para 19
AIR Mad. 144 referred to para 20
AIR 1933 Allahabad 417 referred to para 26
0
! CIVIL ORIGINAL JURISDICTION : Transferred Case No.
6 of 2009.

(Under Article 139A(1) of the Constitution of India)

Harish N. Salve, Ravi Kiran Jain, Ashok Kr. Srivastava, E
Amit Sthalekar, Minakshi Grover, Shaiwal Srivastava, lndrajeet
Oas, Goodwill lndeevar, Vijay Prakash and M.C. Gupta for the
I. Appellants.
,,.
K. Radhakrishnan, Rajiv Nanda and B.K. Prasad for the
Respondents. F

The Judgment of the Court was delivered by

S.H. KAPADIA, J. 1. The Presider.it of India by a Warrant
dated 6.8.2008 under her hand and seal appointed Dr. Satish
G
_...
---._ Chandra, Respondent no. 3 herein as Additional Judge of
Allahabad High Court.

2. The question for consideration is: whether appointment
of Respondent no. 3 as Additional Judge of Allahabad High
Court was an infraction of Article 217(2) and Article 217(1) of H
932 SUPREME COURT REPORTS [2009] 10 S.C.R.

A the Constitution of India? Was he qualified for appointment as
a Judge - if so - has the mandatory process of consultation -.
under the Constitution stood followed?

Background Facts:
B 3. Shri Mahesh Chandra Gupta (Respondent no. 1 in
S.L.P.(C) No. 25859/08), a practicing advocate, filed a Writ
Petition under Article 226 of the Constitution before the
Allahabad High Court on 18.8.2008 challenging the
appointment of Respondent no. 3 herein as an Additional Judge
c of the Allahabad High Court on the ground that he was not
eligible for such an appointment. The Original Petitioner prayed
for issuance of quo warranto directing Respondent no. 3 as a
Judge of Allahabad High Court to show the authority of his
Office and to justify the constitutionality of his appointment as
D a Judge of Allahabad High Court. According to the original 1
petitioner, Respondent no. 3 herein lacked basic eligibility
qualification; that Respondent no. 3 had not practiced as an
advocate for at least ten years in the Allahabad High Court and
that Respondent no. 3 did not hold Judicial Office of a judicial
E service subordinate to Allahabad High Court. In the original
petition, the challenge was only on the ground of lack of
eligibility but not on suitability and/or want of effective
consultation process, which grounds were taken later on by ~

supplementary affidavits. •
F 4. On 10.9.2008 an Order was passed by the Division
Bench of the Allahabad High Court directing production of
Record of the Proceedings before the High Court Collegium
pertaining to the recommendations made by the High Court
Collegium in regard to appointment of Respondent no. 3 as
G . Additional Judge of Allahabad High Court. In compliance, on
12.9.2008 the requisite record was produced for perusal by the ._ ,.-

Division Bench of the High Court in a sealed cover. The record
inter alia contained the letter of recommendation made by the
High Court Collegium together with the enclosure/annexures
H
MAHESH CHANDRA GUPTA v. UNION OF INDIA & 933
ORS. [S.H. KAPADIA, J.]

thereto. The letter of recommendation of the High Court A
' Collegium was read by the Division Bench and since the said
letter referred to the Report of the Sub-committee of three
Judges of the High Court, the Division Bench of the High Court
required that the Report of the Sub-Committee be shown to
them on the date fixed. B

5. On 17.9.2008, the impugned order was passed by the
Division Bench of the Allahabad High Court in following relevant
·~
terms:

"The collegium proceedings were produced before us on c
12.09.2008 in a sealed cover in open Court. The said
record was returned within a few minutes of its being
produced before us.

-. However, a perusal of the recommendation made by D
• the collegium indicated that the recommendation on the
persons propo~ed to be elevated from the source 'service'
(including the third respondent) was made by the collegium
on the recommendation of a Committee of three Hon'ble
Judges of this Court constituted specially for the purpose.
E
The report of the said committee was specifically referred
to in the letter of recommendation sent by Hon'ble the
Chief Justice, and endorsed by the other two members
,. of the col/egium. However that report did not appear to
have been sent to the other Constitutional functionaries
F
along with the recommendation of the collegium, nor that
report was part of the record which was produced before
us. Accordingly on 12.09.2008, we had orally required the
High Court to produce the said report before us in a
sealed cover, with an understanding that at this stage the
said report would not form part of the official record of this G
i. case nor it would be made public. Sri S.P. Gupta, Senior
Advocate assisted by Sri Amit Sthalekar, Advocate,
expressed their inability to produce the said report on the
same day and we accordingly orally permitted them to
produce it on the next date already fixed in the case i.e. H
934 SUPREME COURT REPORTS [2009] 10 S.C.R.

A 16.09.2008.
•
However, on 16.09.2008 the report was not
produced and Sri S.P. Gupta sought 24 hours time to seek
further instructions in that behalf. The matter was, therefore,
posted for today.
8
Today, Sri S.P. Gupta assisted by Sri Amit
Sthalekar, stated that the High Court has declined to
produce the Committee's report for the perusal of the _,,,
Bench even in a sealed cover, despite the understanding
c that the report would not be made public. We are unable
to comprehend any plausible reasons for this unusual
stand taken by the High Court.

The Supreme Court in the case of PUCL Vs. Union
0 of India AIR 2004 SC 1442 went to the extent of holding
that public disclosure of information should be generous •'
and that non-disclosure could be justified only on
considerations of public interest. Here it is not even a case
of public disclosure. Refusal to show an official document
even to the Court, that too by an institution like the High
E
Court, would require exceptionally strong reasons having
regard to the impact of such act on the public confidence
in the Judicial system.

Therefore, having regard to the need to maintain
...
F public confidence in this institution particularly in the
present times, we have little option except to pass this
order directing that the report be produced before us on
25th September, 2008.

G We make it clear that if the High Court proposes to
claim privilege or raise any other objection to the
production of the report, it will be open to the High Court ...
to do so, but in writing by way of an application. If such an
application is moved on or before 25.09.2008, it will not
be necessary for the High Court to produce the
H
MAHESH CHANDRA GUPTA v. UNION OF INDIA & 935
ORS. [S.H. KAPADIA, J.]
;
Committee's report anless those objections are heard and A
disposed of.

Put up on 25th September 2008."

(emphasis supplied)
8
6. It is at that stage that Allahabad High Court (Respondent
.l~ no. 2 in the original writ petition) came to this Court by way of
Tr5rnsfer Petition (C) No. 1186 of 2008. By Order dated
18.2.2009, which is a speaking order, this Court withdrew the
Writ Petition, filed by Shri Mahesh Chandra Gupta, from the file c
of Allahabad High Court and transferred the same to this Court.
This is how the matter is before us.

Contentions:
•
' 7. Shri R.K. Jain, learned senior counsel appearing on D
behalf of the Original Petitioner in the High Court, firstly
submitted that, for qualifying under Article 217(2)(b) read with
Explanation (aa) of the Constitution a person who has held a
Judicial Office or the office of a Member of a Tribunal for more
than ten years, but has not practiced as an Advocate eve.n for E
a day though enrolled as an Advocate, cannot be said to be
eligible for appointment as a High Court Judge. According to
,,.
the learned counsel, mere enrolment which gives "a right to
practice" is not enough to make a person eligible under Article
217(2)(b). According to the learned counsel, right to practice F
is one thing and having practiced is another thing and,
therefore, not actually practicing but having acquired a right to
practice would not constitute a qualification under Article
217(2)(b) of the Constitution. In support of his above argument,
learned counsel submitted that Explanation (aa) though termed G
l. as an "Explanation" is in effect in the nature of a proviso, which
cannot be torn apart of the main enactment. According to the
learned counsel, Explanation (aa), appended to Article
217(2)(b), cannot provide for necessary qualification, which is
contained only in Article 217(2)(b) of the Constitution. In the ~

H
936 SUPREME COURT REPORTS [2009] 10 S.C.R.

'tr
A alternative, without admitting that respondent no. 3 had the
qualification of being an Advocate of a High Court within the
meaning of Article 217(2)(b), learned counsel urged that even
if a mere "right to practice" amounts to having praticed, if a
person after having remained an Advocate for some time,
B ceases to practice and employs himself for earning, and
thereafter holds an office of a Member of the Tribunal, the period
of his holding the office as a Member cannot be computed or ~·
taken into account with the aid of Explanation (aa) to Article
217(2)(b) of the Constitution. In this connection, learned counsel
c pointed out that between 1975 to 1997, respondent no. 3
remained in service at various places, he became a Member
of the Tribunal and worked as a Member between 3.12.1997
and 6.8.2008, therefore, according to the learned counsel, since
respondent no. 3 had ceased to practice from 1975 to 1997,
the period during which respondent no. 3 worked as a Member •'
D
of the Tribunal ought not to be computed with the aid of
Explanation (aa) to Article 217(2)(b) of the Constitution.
According to the learned counsel, on the facts of this case, there
was consultation by the members of the two Collegiums based
on the performance of respondent no. 3 as a Member of a
E Judicial Tribunal; that the source of respondent no. 3
appointment stood shown as from "service" but there was no
consultation regarding his appointment under Article 217(2)(b). "
According to the learned counsel, the performance of
respondent no. 3 during the period he held the office of the
F Member of a Judicial Tribunal, cannot be said to be "a
consultation" as, in this case, there was neither any consultation
regarding the period during which respondent no. 3 could be
said to have held Judicial office under Article 217(2)(a) nor on
his having practiced as an Advocate for ten years under Article
G 217(2)(b), which was the basic eligibility criteria. Learned .'.

counsel next urged that for being eligible to be appointed a
Judge of a High Court under Article 217(2)(b) of the
Constitution, a person needs to be an Advocate of a "High
Court". In this connection, learned counsel emphasized the
H expression "an advocate" in Article 233(2) in contradistinction
MAHESH CHANDRA GUPTA v. UNION OF INDIA & 937
ORS. [S.H. KAPADIA, J.]

to the expression "an advocate of a High Court" in Article A
)/
217(2)(b) and submitted that this difference is not insignificant.
According to the learned counsel, for appointment to the post
of a High Court Judge, the person has to be an advocate of a
High Court whereas for appointment in the District Court, he
may not be an advocate of a High Court but simpiy "an B
advocate". In this connection, reliance was placed on the
judgment of this Court in the case of Prof. C.P. Agarwal v. G.D.
Parikh reported in AIR 1970 SC 1061. At this stage, it may be
"' mentioned that vide para 9 of the judgment in Prof. C.P.
Agarwa/'s case (supra) this Court observed that the distinction c
between the words "an advocate" under Article 233(2) and the
words "an advocate of a High Court" in Article 217(2)(b) have
no significance after coming into force of the Advocates Act,
1961 ("1961 Act" for short), which lays down that, after the 1961
Act, there are only tWb classes of Advocates, i.e., Advocates
D
~ and Senior Advocates entitled to practice. According to the
J
learned counsel, the ratio of the judgment of this Court in Prof
C.P. Agarwa/'s case (supra) is per incuriam. In the alternative,
learned counsel urged that, in any case, after the Forty-fourth
Constitutional Amendment (by which Explanation (a) stood
inserted), para 9 of the judgment in Prof C.P. Agarwa/'s case
E'
(supra) became irrelevant because by Explanation (a) the
expression "an advocate of a High Court" has again appeared,
which indicated the intention of Parliament that the eligibility for
appointment of a Judge is to be a practicing advocate of High
Court and not merely enrolment as an advocate. Learned F
counsel next urged that respondent no. 3 obtained his
appointment allegedly by giving misleading facts amounting to
perpetrating fraud. In this connection, reliance was placed on
certain paragraphs of the writ petition as well as of the 4th
Supplementary Affidavit dated 27.8.2008. The main allegations G
in this regard are - that, respondent no. 3 has never practiced
,, either in the High Court or in any District Court of U.P.; that, he
"'
had represented of having practiced in the Allahabad High
Court between 1975 and 1977 when, in fact, he had not
practiced in that High Court; that, between 1977 to 1989 he had H
938 SUPREME COURT REPORTS [2009] 10 S.C.R.
.,.
A worked as a professor in the law colleges at Bikaner, Bareilly,
Rohtak and Shimla and thereafter between 1989 to 1997 he \
stood employed at various posts in and out of India. These
details were collected from the website of Delhi Income Tax
Appellate Tribunal and on the basis of the said inputs, it has
8 been alleged that respondent no. 3 did not practice law after
1977. According to the learned counsel, respondent no. 3 had
never practiced at Allahabad High Court even between 1975
and 1977 though he stood enrolled as an Advocate of the High
Court on 13.9.1975. This, according to the learned counsel,
c constituted practicing fraud. According to the learned counsel,
it is correct to say that in matters of appointment, the scope of
judicial review stood confined only to two grounds, namely, lack
of eligibility and lack of consultation but fraud, according to the
learned counsel, vitiates every action and, in this case,
respondent no. 3 got himself appointed as a Judge of
D
Allahabad High Court by practicing fraud and consequently his "•
appointment stood vitiated. Learned counsel next urged that,
in this case, reliable information was withheld by the Chief
Justice of the Allahabad High Court from the Supreme Court
' Collegium; that elimination of judicial review did not mean
E elimination of judicial scrutiny of the consultation process and
if in a given case like the present one "reliable information"
mentioned in the Report of the three Judges Sub-committee
stood withheld from the Supreme Court Collegium then such
withholding of information would certainly fall in the category of
F lack of consultation. According to the learned counsel, a three
Judges Sub-Committee was appointed by the Chief Justice of
Allahabad High Court to examine the quality of judgments of
the persons coming under the zone of choice from "service"
quota and if the Sub-committee gave adverse comments about
G the reputation of respondent no. 3, which was not forwarded to
the Supreme Court Collegium, then such an act would constitute
withholding of reliable information, which would make this case ',
fall in the category of lack of effective consultation. tn this
connection, learned counsel placed reliance on paragraphs 29
H and 32 of the judgment of this Court in Re. Special Reference
MAHESH CHANDRA GUPTA v. UNION OF INDIA & 939
ORS. [S:H. KAPADIA, J.]

;l
No. 1of1998 reported in (1998) 7 SCC 739. According to the A
l~arned counsel, initiation comes by recommendation of the
Chief Justice of the High Court on which the Supreme Court
Coflegium places reliance and, therefore, it was expected of
the Chief Justice of the High Court not to withhol.d the relevant
information from the Collegium of the Supreme Court, which B
information existed in the Sub-committee of three Judges of the
High Court giving adverse comments about the reputation of
:,; respondent no. 3. On the basis of the aforestated submissions,
learned counsel urged that judicial review on the ground of lack
of consultation cannot be eliminated in this case. C.
'
8. Shri Harish N. Salve, learned senior counsel appearing
on behalf of the Allahabad High Court submitted that
interpretation of Article 217(2)(b) is no longer res integra.
According to the learned counsel, the expression "an advocate
,• of a High Court" was placed in the Constitution at a time when D
the practice of advocates was governed by Indian Bar Councils
Act, 1926 ("1926 Act" for short). Under Section 2 of that Act,
"an advocate" was defined to mean "an advocate entered in
the roll of advocates of a High Court under the provisions of
the Act". Under Section 8 of that Act, it was inter alia provided E
that: "no person shall be entitled as of right to practice in any
• High Court, unless his name is entered in the roll of advocates
of the High Court maintained under this Act". Therefore,
according to the learned counsel, the fundamental requirement
under the 1926 Act was enrolment in the High Court in order F
to be eligible. However, enrolment gave a right to practice.
Therefore, a person who had such a right to practice was alone
eligible for elevation. According to the learned counsel, the 1961
Act, however, made a fundamental change in the scheme of
law as it provided that every advocate who is enrolled with the G
~
Bar Council is entitled to practice in India. The job of maintaining
roll of advocates is entrusted to State Bar Councils (see
Section 17 of 1961 Act). Once a person stood enrolled with a
State Bar Council, he could practice in any cburt in India unlike
the earlier law where he could practice as of right only in that H
940 SUPREME COURT REPORTS [2009] 10 S.C,R.

A High Court in which he was enrolled as an Advocate. Therefore,
according to the learned counsel, with the advent of the 196~
Act, the expression "an advocate of a High Court" lost special
significance, as any advocate enrolled with the State Bar
Council was entitled to practice in the High Court subject to any
B rules which may be made by the court to regulate practice in
-that court (see Article 145(1) of the· Constitution). According to
the learned counsel, with the fundamental changes brought
about by the 1961 Act, the expression "an advocate of a High
Court" was understood post-1961 to mean any person entitled
c to practice in a High Court. In other words, any person whose
name was enrolled on the State Bar Council is now regarded
as an advocate of the High Court. It is in this context that the
expression "an advocate of a High Court" under Article
217(2)(b) lost special significance, which it had in the past. In
the past, according to the learned counsel, special significance 1
0
was attached to the said expression only to delineate an
advocate from other legal practitioners like, vakils, pleaders,
attorneys etc., who were not enrolled in the High Court.
According to the learned counsel, this aspect has been brought
out in the judgment of this Court in Prof. C.P. Agarwal's case
E (supra). (see para 5 of that judgment). In that case, it has been
held that the distinction between the words "an advocate" in
Article 233(2) and the words "an advocate of a High Court" in
Article 217(2)(b) has no significance after coming into force of
the 1961 Act. According to the learned counsel, the judgment
F of this Court in Prof. C.P. Agarwa/'s case (supra) completely
negates these suggestions that the expression "an advocate
of a High Court" should be construed as a person who is
actually practicing as an advocate of the High Court. Learned
counsel next urged that clause (aa) was inserted in 1978 to
G widen the sphere of those who became eligible for elevation.
Under that clause, the period during which a person holds office "
as a member of a Tribunal requiring special knowledge of law,
has to be added to the period during which such a person has
been an advocate of a High Court. According to the learned
H counsel, clause (aa) requires such period to be added to the
MAHESH CHANDRA GUPTA v. UNION OF INDIA & 941
ORS. [S.H. KAPADIA, J.]

years during which a person was entitled to practice at the Bar A
:I,
in order to determine whether threshold limit of ten years stood
crossed. According to the learned counsel, if insistence upon
ten years of actual practice was a constitutional requiremen~
then clause (aa) would be rendered nugatory because clause
(aa) assumes that a person who otherwise does not satisfy the B
requirement of ten years of actual practice can still fall under
Article 217(2)(b) if a person had a right to practice for a short
,,, period of time followed by his becoming a member of a Tribunal
for ten years. According to the learned counsel, clause (aa)
negates the suggestion that actual practice is the constitutional c
requirement of Article 271 (2)(b ). Learned counsel next
submitted that there is a conceptual difference between
"eligibility" and "desirability" for elevation. In this connection, it
was submitted that a person who has been an advocate
enrolled for ten years, who has been an enrolled advocate and
,~ who has held office as a member of a Tribunal, the total of
D

which exceeds ten years, is eligible for elevation. However, the
converse is not true, namely, not all persons, who have been
advocates for ten years or have held office of the Tribunal after
being enrolled for a period of ten years are worthy of being
elevated. It is only when a collegium is satisfied that a person E
. is worthy of being elevated, that it recommends appoint~ent
to the High Court. The evaluation of the worth and the mer \t of
a person as a member of the Tribunal is done by considering
his judgments and orders and such evaluation by the collegium
has no bearing on the eligibility of a candidate for elevation. F
Learned counsel next urged that, there is no merit in the
contention advanced on behalf of the Original Petitioner that
since respondent no. 3 was shown as a service judge,/he
should have been considered under Article 217(2)(a).
According to the learned counsel, for the High Court, the G
? Constitution does not create any such quota. It merely
prescribes the eligibility criteria. It is purely by convention that,
in order to have a healthy mix of those from the Bar and those
who have had past experience of working as judicial officers/
officers in the Tribunals that a policy decision stood adopted H
942 SUPREME COURT REPORTS (2009] 10 S.C.R.

A in the Chief Justices' Conference of 2002, which extended the
ambit of appointment to take within its sweep members from
Income Tax Appellate Tribunal ("ITAT" for short). This was a pure
policy decision taken in the said Conference. For that purpose,
-
it was decided that when members of ITAT are elevated, they
B may be counted from "service quota". Therefore, according to
the learned counsel, it is obvious that for eligibility purpose, one
has to read clause (aa) of the Explanation with Article 217(2)(b)
in cases of elevation of members of ITAT. According to the
learned counsel, the said policy decision has no relevance to
c the question of eligibility of the person elevated. According to
the learned counsel, there is no merit in the challenge of the
original petitioner based on lack of effective consultation.
According to the learned counsel in the judgment of this Court
in Supreme Court Advocates-on-Record Association and Ors.
D v. Union of India reported in 1993 (4) SCC 441, Verma, J.,
as he then was, speaking for the majority held, that in the matter
of primacy, the fundamental assumption was a participatory role
of each of the functionaries; that the question of primacy is best
avoided by each Constitutional functionaries remembering that
all of them are participants in a joint venture, the aim of which
E is to find out and select the most suitable candidate. It was
further observed that primacy was a solemn duty to be
discharged only where it became strictly necessary. In the said
judgment, dealing with the question of justiciability, this Court
explained that "the reduction of the area of discretion to the
F 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 sufficient checks against arbitrariness." Relying on the said
judgment, learned counsel submitted that, in the present case,
G the safeguard was attained by creating a plurality of institutions
including the Chief Justice of India and the Chief Justice of the
High Court and therefore there was no occasion for further
judicial review as a check or balance on the exercise of power.
Learned counsel also placed reliance on the judgment of the
H Constitution Bench of this Court in Re. Special Reference No.
MAHESH CHANDRA GUPTA v. UNION OF INDIA & . 943
ORS. [S.H. KAPADIA, J.)

1 of 1998 (supra) in which it was clarified that the moment a A
consultation process stood complied with, the content of that
process was not amenable to judicial review (see para 32). It
was clarified that judicial review was admissible only if the views
of a Constitutional functionary (consultation with whom is the
Constitutional requisite) is not taken into account. It was B
submitted that the Chief Justice of the High Court is a co-equal
functionary and that ideally the appointment should be by
unanimity among all functionaries. It was submitted that the
Chief Justice of the High Court does not merely provide
information to the Supreme Court collegium to enable them to c
recommend Judges for elevation. Therefore, according to the
learned counsel, all this translates into recommendation made
by the collegium of the High Court and that the collegium of the
Supreme Court does not sit in appeal over the recommendation
of the High Court. In this connection, learned counsel submitted D
that the Chief Justice of the High Court may in order to advice
himself and the members of his collegium take the assistance
of other colleagues or information from various sources.
However, the process of getting material from the High Court
to aid and assist formation of opinion by the collegium of the E
Supreme Court is a matter between two Constitutional entities
(Collegiums) which does not fall within the area of judicial
review. It is important to bear in mind, according to the learned
counsel, that the material like the Report of the Sub-committee
is supplied not in justification of the recommendation but only
to assist the Supreme Court Collegium to form an opinion. F
Therefore, according to the learned counsel, the question as
to whether there existed any material with the High Court and
the question whether such a material was made available to
the Supreme Court is a matter which is incapable of enquiry in
proceeding for judicial review. According to the learned counsel, G
the submission made on behalf of the original petitioner that
there was lack of effective consultation because the High Court
had material which was not furnished to the Supreme Court
Coflegium is totally misconceived. Lastly, learned counsel urged
I
that the Original Petition~r has made rank irresponsible H
944 SUPREME COURT REPORTS (2009] 10 S.C.R.

A statements in his affidavit dated 15.4.2009 which calls for
strictures against the petitioners. In the circumstances,
according to the learned counsel, the transferred writ petition
should be dismissed.

B Relevant Provisions of the Constitution:

9. Before analysing Article 217(1) and (2), we quote
hereinbelow relevant provisions of the Constitution.

Article 124(3) of the Constitution reads as follows:
c "124. Establishment and Constitution of Supreme Court.-

(3) A person shall not be qualified for appointment as
a Judge of the Supreme Court unless he is a citizen
D of India and-
t
•
(a) has been for at least five years a Judge
of a High Court or of two or more such Courts
in succession; or
E (b) has been for at least ten years an advocate
of a High Court or of two or more such Courts
in succession; or

(c} is, in the opinion of the President, a '
F distinguished jurist.

Explanation I. - ...
Explanation //.- In computing for the purpose of this clause
the period during which a person has been an advocate,
G any period during which a person has held judicial office
not inferior to that of a district Judge after he became an
advocate shall be included.

(emphasis supplied)
H
MAHESH CHANDRA GUPTA v. UNION OF INDIA & 945
ORS. [S.H. KAPADIA, J.]
.,.
Article 217(1) and (2) of the Constitution reads 1s follows: A

"217. 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 Presid~nt by warrant under his hand and seal B
,,.. 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 c
acting Judge, as provided in article 224, and in any
other case, until he attains the age of sixty two years

••
Provided that- D
(a) a Judge may, by writing under his hand
addressed to the President, resign his office;

(b) a Judge may be removed from his office by
the President in the manner provided in E
clause;(4) of article 124 for the removal of a
Judge of the Supreme Court;
~

(c) the office of a Judge shall be vacated by his
being appointed by the President to be a F
Judge of the Supreme Court or by his being
transferred by the President to any other High
Court within the territory of India.

(2) A person shall not be qualified for appointment as
a Judge of a High Court unless he is a citizen of G
India and-

(a) has for at least ten years held a judicial office
in the territory of India; or
H
946 SUPREME COURT REPORTS [2009] 10 S.C.R.

A (b) has for at least ten years been an advocate "
of a High Court or of two or more such courts
in succession;

Explanation.-For the purposes of this clause-
8 (a) in computing the period during which a person has
held judicial office in the territory of India, there shall
be included any period, after he has..tield any
judicial office, during which the person has been an
advocate of a High Court or has held the office of
c a member of a tribunal or any post, under the Union
or a State, requiring special knowledge of law;
.'
(aa) in computing the period during which a person has
been an advocate of a High Court, there shall be
',
D included any period during which the person has
held judicial office or the office of a member of a
tribunal or any post, under the Union or a State,
requiring special knowledge of law after he became
an advocate."
E Article 224(1) reads as follows:
)
"224. Appointment of additional and acting Judges-

(1) if by reason of any temporary increase in the business
of a High Court or by reason of arrears of work therein, it
F
appears to the President that the number of the Judges
of that Court should be for the time being increased, the
President may appoint duly qualified persons to be
additional Judges of the Court for such period not
exceeding two years as he may specify."
G
Article 233(2) reads as follows:

"233 Appointment of district judges-

(1) ...
H
MAHESH CHANDRA GUPTA v. UNION OF INDIA & 947
ORS. [S.H. KAPADIA, J.]

(2) A person not already in the service of the Union or of A
" the State shall only be eligible to be appointed a district
judge if he has been for not less than seven years an
advocate or a pleader and is recommended by the High
Court for appointment."
B
Section 220(3) of the Government of India Act, 1935 reads
as follows:
,,. "220. Constitution of High Court.-

(3) A person shall not be qualified for appointment as a c
judge of a High court unless he -

(a) is a barrister of England or Northern Ireland, of at least
ten years standing, or a member of the Faculty of
Advocates in Scotland of at least ten years standing, or
...·I D
(b) is a member of the Indian Civil Service of at least ten
years standing, who was for at least three years served
as, or exercised the powers of, a district Judge; or

(c) has for at least five years held a judicial office in British E
,,
India not inferior to that of a subordinate judge, or judge
of a small cause court; or
,,
(d) has for at least ten years been a pleader of any High
Court, or of two or more such Courts in successi.on:
F
Provided that a person shall not, unless he is, or when
first appointed to Judicial office was, a barrister, a member
of the Faculty of Advocates or a pleader, be qualified for
appointment as Chief Justice of any High Court constituted
by letters patent until he has served for not less than three G .·
years as a Judge of a High Court.
rJ
In computing for the purposes of this sub-se~tion the
standing of a barrister or a member of the Faculty of
Advocates, or the period during which a person has been
"'I' H
948 SUPREME COURT REPORTS [2009] 10 S.C.R.

A a pleader, any period during which the person has held
judicial office after he became a barrister, a member of
the Faculty of Advocates, or a pleader, as the case may
be, shall be included."

Analysis of Article 217(1) and (2):
B
10. Whether "actual practice" as against "right to practice"
is the pre-requisite constitutional requirement of the eligibility
criteria under Article 217(2)(b) is the question which we are
required to answer in this case. At this stage, we may state that,
c there is a basic difference between "eligibility" and "suitability".
The-process of judging the fitness of a person to be appointed
as a High Court Judge falls in the realm of "suitability". Similarly,
the process of consultation falls in the realm of suitability. On
the other hand, eligibility at the threshold stage comes under
D Article 217(2)(b). This dichotomy between suitability and
eligibility finds place in Article 217(1) in juxtaposition to Article
.
'
217(2). The word "consultation" finds place in Article 217(1)
whereas the word "qualify" finds place in Article 217(2). This
dichotomy is succinctly brought out in the Constitutional Law
E of India by H.M. Seervai, Fourth Edition, at page 2729, which
is quoted hereinbelow:

"From Article 217(1) as enacted in 1950 the following )

things are clear. First, Art. 217(1) provided for the
appointment of only permanent High Court Judges. They
F were permanent in the sense that they continued to hold
their office till they attained the age of 60 years. They were
not "permanent" as opposed to Addi. Judges who held
office for a period not exceeding 2 years, because in 1950
our Constitution did not provide for Addi. Judges.
G Secondly, Art. 217(2) prescribed the qualifications which
a person must possess before he could be appointed a i.
High Court Judge. Thirdly Art. 217(1) provided the
procedure to be followed before a person was appointed
a High Court Judge. That procedure was designed to test
;
H the fitness of a person to be appointed a High Court Judge:
.<·
'
!"
MAHESH CHANDRA GUPTA v. UNION OF INDIA & 949
ORS. [S.H. KAPADIA, J.]

his character, his integrity, and his competence in various A
branches of the law, and the like. In recruiting a person from
the Bar, his experience in different kinds of litigation would
also be taken into account. The thing to note is that Art.
217 (1) provides for a once for all test of a person's fitness
to be a High Court Judge. A person who has passed that B
test is subject to no other test of fitness but will continue
to hold his office till he attains the age of retirement which
had been fixed at 60 years till 1963. But once appointed,
his performance on the Bench may be good, bad or
indifferent. His judgments and orders may be subject to
·.;1
appeal in High Court, and are certainly subject to appeal
c
to the Supreme Court under Art. 136 if not under other
Articles of Chap. IV of part VI."

11. The appointment of a Judge is an executive function
·•" of the President. Article 217(1) prescribes the constitutional D
requirement of "consultation". Fitness of a person to be
appointed a Judge of the High Court is evaluated in the
consultation process (see Basu's Commentary on the
Constitution of India, Sixth Edition, p. 234). Once this
dichotomy is kept in mind, then, it becomes clear that E
evaluation of the worth and merit of a person is a matter entirely
different from eligibility of a candidate for elevation. Article
•
- 217(2), therefore, prescribes a threshold limit or an entry point
for a person to become qualified to be a High Court Judge
whereas Article 217(1) provides for a procedure to be followed F
before a person could be appointed as a High Court Judge,
which procedure is designed to test the fitness of a person to
be so appointed: his character, his integrity, his competence,
his knowledge and the like. Hence, Article 217(1) and Article
217(2) operate in different spheres. Article 217(1) answers the G
j
question as to who "should be elevated" whereas Article 217(2)
deals with the question as to who "could be elevated". Enrolment
of an advocate under the 1961 Act comes in the category of
who "could be elevated" whereas the number of years of actual
practice put in by a person, whi~h is a significant factor, comes
H
950 SUPREME COURT REPORTS [2009] 10 S.C.R.

A in the category as to who "should be elevated". One more
aspect needs to be highlighted. "Eligibility" is an objective
factor. Who could be elevated is specifically answered by
Article 217(2). When "eligibility" is put in question, it could fall
within the scope of judicial review. However, the question as
B to who should be elevated, which essentially involves the aspect
of "suitability", stands excluded from the purview of judicial
review. At this stage, we may highlight the fact that there is a
vital difference between judicial review and merit review.
Consultation, as stated above, forms part of the procedure to
c test the fitness of a person to be appointed a High Court Judge
under Article 217(1). Once there is consultation, the content of
that consultation is beyond the scope of judicial review, though
lack of effective consultation could fall within the scope of
judicial review. This is the basic ratio of the judgment of the
Constitutional Bench of this Court in the case of Supreme Court
D Advocates-on-Record Association (supra) and Re. Special ••
Reference No. 1 of 1998 (supra)

12. Lastly, it may also be stated that the present case
arises from a writ petition filed under Article 226 of the
E Constitution by way of a writ of quo warranto and not a writ of
certiorari.

Significance of Ex12lanation {a} and Ex12lanation {aa}
inserted in Article 217{2} vide Fortv-fourth Constitutional ...
Amendment:
F
13. One of the questions which arises for determination
before us is: whether by insertion of Explanation (aa) appended
to Article 217(2)(b), the effect of judgment of this Court in Prof.
C.P. Agarwal's case (supra) stands nullified?
G
14. To answer the above question, we need to refer to
Article 124(3) (which has been quoted hereinabove). Article
124 deals with establishment and Constitution of Supreme
Court. Article 124(3) prescribes qualifications for appointment
of a person as a Judge of the Supreme Court. Article 124(3)(b)
H
MAHESH CHANDRA GUPTA v. UNION OF INDIA & 951
ORS. [S.H. KAPADIA, J.]

inter alia states that a person shall not be qualified for A
.,. appointment as a Judge of the Supreme Court unless he has
been for at least 10 years an advocate of a High Court. This
sub-clause has to be read with Explanation-II which is similar
to Explanation (aa) apper.ded to Article 217(2)(b). Commenting
on Explanation-II, H.M. Seervai in Constitutional Law of India, B
First Edition, p. 1012, has this to say:

"The qualification for appointment as a judge of the
Supreme Court is the holding of a judge's office for at least
five years in a High Court or in two or more High Courts in C
succession; or at least ten years' standing as an advocate
of a High Court or two or more High Courts in succession;
or distinction achieved as a jurist [Art. 124(3)]. In computing
the period during which a person has been an ::idvocate,
any period during which he has held judicial office not D
inferior to that of a District Judge after he become an
advocate, is to be included [Art. 124 (3) Expl. II]. It is clear
that the explanation is not attracted if a person has been
an advocate for ten years before accepting any judicial
appointment, for that by itself is a sufficient qualificqtion
a
for appointment as judge of the Supreme Court." E
(emphasis supplied)

15. In our view, Explanation (aa) appended to Article 217(2)
is so appended so as to compute the period during which a
person has been an advocate, any period during which he has F
held the Office of a Member of a Tribunal after he became an
advocate. As stated by the learned Author, quoted above, if a
person has been an advocate for ten years before becoming
a member of the Tribunal, Explanation (aa) would not be
attracted because being an advocate for ten years per se would G
constitute sufficient qualification for appointment as a Judge of
the High.Court.

16. Before concluding on this point, we may state that the
word "standing" connotes the years in which a person is entitled
to practice and not the actual years put in by a person in practice H
952 SUPREME COURT REPORTS [2009] 10 S.C.R.

A (see Halsbury's Laws of England, Fourth Edition Reissue,
Volume 3(1), paragraphs 351 and 394 of the Chapter under
the Heading 'Barristers'.) Under Section 220(3)(a) of the
Government of India Act, 1935, qualifications were prescribed
for appointment as a Judge of a High Court. A Barrister of at
B least ten years standing was qualified to be appointed as a
Judge of the High Court. As stated above, the word 'standing'
connotes the years in which a person is entitled to practice, not
the actual years put in by that person in practice. In Re. Lily
Isabel Thomas reported in AIR 1964 SC 855 this Court
c equated "right to practice" with "entitlement to practice" (see
para 11 ). In our view, Article 217(2)(b), therefore, prescribes a
qualification for being appointed a Judge of the High Court. The
concept of "actual practice" will fall under Article 217(1) whereas
the concept of right to practice or entitlement to practice will
fall under Article 217(2)(b). The former will come in the category
0
of "suitability, the latter will come in the category of "eligibility".

Meaning of the Expression "an Advocate of a High Court"
in Article 217(2)(b):

E 17. The said expression was placed in the Constitution at
a time when the practice of advocates was governed by the
Indian Bar Councils Act, 1926. Section 2(1 )(a) of that Act
defined an "advocate" to mean "an advocate entered in the roll
of advocates of a High Court under the provisions of the Act".
it Section 8 provided that "no person shall be entitled as of right
to practise in any High Court, unless his name is entered in the
roll of advocates of the High Court maintained under the Act."
It is this enrolment which gave a right to practice or entitlement
to practice.

G 18. The scope of the said 1926 Act has been succinctly
spelt out in the judgment of the Allahabad High Court in the
case of Durgeshwar Dayal Seth v. Secretary, Bar Council
reported in AIR 1954 Allahabad 728 (vide paragraphs 4 and
5), which judgment stands approved by this Court in the case
H of 0. N. Mohindroo v. Bar Council of Delhi and ors. reported
MAHESH CHANDRA GUPTA v. UNION OF INDIA & 953
ORS. [S.H. KAPADIA, J.]

in AIR 1968 SC 888. Paragraphs 4 and 5 of the judgment in A
Durgeshwar's case (supra) read as under:

"4. The Indian Bar Councils Act, 1926, was enacted by the
Indian Legislature to provide for the constitution and
incorporation of Bar Councils for certain courts. The Act
B
extends to all the provinces of India. Under Section 1(2),
it was made applicable to certain High Courts of Judicature
including that at Allahabad and to such other High Courts
within the meaning of Clause (24) of Section 3 of the
General Clauses Act, 1897, as the Provincial Government
by notification in the official gazette, declare to be High
c
Courts to which this Act applies. Sections 1, 2, 17, 18 and
19 of the Act came into force at once and by Section 1(3)
the Provin~ial .Government was empowered by notification
to direct that the other provisions of the Act would come
•' into force irlrespect of any High Court to which the Act D
applies on sudh date as it may by the notification appoint.

The main provisions of the Act are as follows: Under
Section 3 for every High Court a Bar Council would be
constituted which was to be a body corporate, having E
perpetual succession. Section 8 lays down that

"no person shall be entitled as of right to practise in any
High Court, unless his name is entered in the roll of the
Advocates of the High Court maintained under this Act,"
F
and requires the High Court to prepare and maintain a roll
of Advocates of the High Court. In the roll are to be entered
the names of all persons who were, as Advocates etc ..
entitled as of right to practise in the High Court immediately
before the date on which Section 8 comes into force, G
j provided that they paid a fee, payable to the Bar Council,
of Rs. 10/-. Also the names of all other persons who have
been admitted to be Advocates of the High Court are to
be entered in the roll on payment of such fee as may be
prescribed. The High Court is required to send to the Bar H
954 SUPREME COURT REPORTS [2009] 10 S.C.R. ..
A Council a copy of the roll. This is also provided in Section
8.

The Bar Council is authorised to make rules to
regulate the admission of persons to be Advocates of the
High Court, vide Section 9. The High Court is given the
B
power by Section 10 to punish an Advocate for
misconduct; the enquiry into the allegation of misconduct
is to be made by a committee of the Bar Council. Every
person whose name is entered in the roll of Advocates is
entitled as of right to practise in the High Court of which
c he is an Advocate, vide Section 14. Power is given by
Section 15 to a Bar Council to make rules in respect of
the rights and duties of the Advocates of the High Court
and their discipline and professional misconduct. When

D
Ss. 8 to 16 are applied to any High Court, the Legal ,.
Practitioners Act of 1879 stands amended to the extent •
and in the manner specified in the schedule of the Act and
if there is anything inconsistent with their provisions in the
Letters Patent, they are deemed to have been repealed
to that extent.
E
5. On the passing of the above Act, the Provincial
Government issued a notification under Section 1(3)
applying the rest of the sections of the Act to the High .
Courts then existing, the High Court of Judicature at
F Allahabad (which will be referred to as the old High Court)
and the Chief Court of Avadh and Bar Councils were
established for them. The applicant got himself admitted
as an Advocate on payment of the fee & his name was
entered on the roll prepared by the old High Court of
Allahabad. Under Section 14 he acquired the right to
G
practise in the old High Court."
l
19. An interesting question on interpretation of Section 4
of Legal Practitioners Act, 1879 ("1879 Act" for short) came
up for consideration before the Patna High Court in Re.
H Devasaran Lall Sinha reported in AIR 1946 Patna 369. The
, MAHESH CHANDRA GUPTA v. UNION OF INDIA & 955
ORS. [S.H. KAPADIA, J.]

qualification for advocates, vakils and attorneys under Section A
1
4 required for an advocate who desired to appear in a Court
subordinate to a High Court in which he was not enrolled that
he should ordinarily be practicing in the Court in which he is
enrolled. In 1941, the applicant had appeared for an
examination held by the Bombay High Court, the passing of B
which entitled him to be enrolled as an advocate of that Court
and to practice in that Court and in Courts subordinate to that
Court. As a matter of fact, the applicant never practiced in the
Bombay High Court or in the Courts subordinate to it. Since
his enrolment as an advocate of the Bombay High Court he had c
practiced only in the District of Gaya in Bihar. This matter was
brought to the notice of the High Court by the Registrar who
pointed out to the High Court that the applicant was not enrolled
as an advocate of the High Court. The applicant stated that he
was entitled to practice as an advocate in Courts subordinate
..
,.;.
to the Patna High Court by placing reliance on Section 14(b)
D
of the 1926 Act, which inter alia provided that an advocate shall
be entitled as of right to practise in any other Court in British
India and before any Tribunal authorised to take evidence. For
that purpose, he placed reliance on the definition of the word
"advocate" in Section 2(1 )(a) of the 1926 Act, which inter alia E
defined an "advocate" to mean an advocate enrolled in the role
-'I of advocates of a High Court under the provisions of the 1926
. Act. This contention of the applicant came to be accepted by
the Patna High Court vide para 4, which reads as under:
F
"4. The only point remaining for consideration is whether
there is any law in force which debars the applicant from
the right to practise in Courts subordinate to this Court. The
qualification for advocates, vakils and attorneys under
Section 4, Legal Practitioners Act, 1879, requires for an G
advocate who wishes to appear in a Court subordinate to
)
a High Court in which he was not enrolled that he should
ordinarily be practising in the Court in which he is
, enrolled. As the applicant is admittedly not regularly
practising in the Bombay High Court in which he is enrolled H
956 SUPREME COURT REPORTS [2009] 10 S.C.R.

A as an advocate, this section, had it stood by itself, would
have been a bar to his practising as an advocate in Courts
subordinate to this Court. But Section 38, Legal
Practitioners Act, provides that nothing in that Act, except
Section 36, shall apply to persons enrolled as advocates
B of any High Court under the Bar Councils Act, 1926. From
this it is clear that the provisions of Section 4 of the Act
do not apply to, and cannot operate to debar the applicant
from practising in Courts subordinate to this Court as he
is in fact an advocate of a High Court enrolled under the
c Bar Councils Act of 1926. Precisely the same point arose
in Madras and was considered by a Full Bench of that
Court in District Judge, Anantapur v. KV. Verna Reddi.
A.l.R. 1945 Mad. 144. The Full Bench held that Section 4,
Legal Practitioners Act, has no application to advocates
D enrolled under the Bar Councils Act by any High Court, and
that being so, Section 4 had to be ignored in the cases
with which they were dealing which were cases of persons
enrolled as advocates in the High Court at Bombay and
claiming to be entitled to practise in Courts subordinate
E to the High Court at Madras as advocate by virtue of their
enrolment as advocates by the Bombay High Court. These
facts are indistinguishable from the facts of the present
case, and with great respect, I can see no reason to differ
from the view taken by the learned Judges who decided
the Madras case. The letter of this Court from the Registrar
F
referred to in the opening paragraph of this judgment must,
therefore, be recalled and it must be declared that the
applicant is entitled to practise as an advocate in the
Courts subordinate to this High Court."
G (emphasis supplied)

20. The above judgment clearly indicates the meaning of
the expression "an advocate of a High Court" in Article
217(2)(b). The important point to be noted is that though the
H applicant had never practiced in the Bombay High Court, where
MAHESH CHANDRA GUPTA v. UNION OF INDIA & 957
ORS. [S.H. KAPADIA, J.]

he was enrolled, the High Court held that the applicant could A
.,. not be debarred from practicing in Courts subordinate to the
Patna High Court as he was in fact an advocate of a High Court
enrolled under Indian Bar Councils Act, 1926. In other words,
ent[tlement or rig ht to practice conferred on the applicant by his
name being enrolle~~'bQ the rolls of the Bombay High Court, B
where he had never practiced, prevented him from being
debarred from practicing in the Courts subordinate to the Patna
High Court. It is:also important to note that the same view has
been taken~bY the Full Bench of the Madras High Court in the
case of District Judge, Anantapur v. K. V. Verna Reddi and c
ors. reported in AIR 1945 Madras 144.

21. At this stage, we may also refer to the provisions of
the Advocates Act, 1961. The said 1961 Act provides for
autonomous Bar Council in each State arnf also for All India
) Bar Council consisting mainly of the representatives of the D
State Bar Councils. Under the 1961 Act, a State Bar Council
has to enrol qualified persons as advocates and prepare a roll
of advocates practicing in the State and thereafter a common
roll of advocates for the whole of India is to be prepared by the
Bar Council of India. The Advocates whose names are entered E
in the common roll would be entitled as of right to practice in
all the courts in India including the Supreme Court. Under the
A
1961 Act, a State Bar Council has been empowered to enrol
~

qualified persons as Advocates on its roll. The class of legal
practitioners known as attorneys was abolished by Advocates F
(Amendment) Act, 1976 and the pre-existing attorneys were
required to become Advocates under the 1961 Act, subject to
their seniority under Section 17 of the Act. The scope of the
1961 Act came for consideration before this Court in the case
of O.N. Mohindroo (supra). One of the points which arose for G
determination in that case related to legislative competence.
J This Court was required to consider the scope of Entries 77
and 78 of List I read with Entry 26 of List Ill of the Seventh
Schedule to the Constitution. It was held that Entries 77 and
_, 78 in List I apart from dealing with the constitution and H
958 SUPREME COURT REPORTS [2009] 10 S.C.R.

A organisation of the Supreme Court and the High Courts also
dealt with persons entitled to practise before the Supreme Court
and High Courts. It was held that, Entries 77 and 78 of List I so
far as they related to the persons entitled to practice before the
Supreme Court and the High Courts are concerned, the power
B to legislate stood carved out from the general power relating
to the provisions in Entry 26 of List Ill. It was held that the power
to legislate in regard to persons entitled to practice before the
Supreme Court and the High Courts is excluded from Entry 26
in List Ill and is made the exclusive field for Legislation by
c Parliament alone. The important point to be noted is that
emphasis has been placed on the expression "entitled to
practice" or "right to practice" in the Constitutional Scheme
evidenced by not only the provisions of Article 217(2)(b) but
also by the provisions contained in Article 145(1 ), Article 246
D read with Entries 77 and 78 of List I and Entry 26 of List Ill of •...
the Seventh Schedule to the Constitution. We quote
herein below paragraphs 8, 9, 10 and 11 of the judgment of this
Court in the case of O.N. Mohindroo (supra), which read as
under:
E "8. This being the scheme with regard to the constitution
and organisation of courts and their jurisdiction and powers
let us next proceed to examine entry 26 in List Ill. Entry 26,
which is analogous to Item 16 in List Ill of the Seventh ~

Schedule to the 1935 Act, deals with legal, medical and
F other professions but is not concerned with the constitution
and organisation of courts or their jurisdiction and powers.
These, as already stated, are dealt with by entries 77, 78
and 95 in List I, entries 3 and 65 in List II and entry 46 in
List Ill. Enactments such as the Indian Medical Council Act,
G 1956, the Indian Nursing Council Act, 1947, the Dentists
Act, 1948, the Chartered Accountants Act, 1949 and the I,
Pharmacy Act, 1948, all Central Acts, would fall under the
power to deal with professions under entry 26 of List Ill in

H
the Seventh Schedule to the Constitution and Item 16 of
List Ill of 1935 Act. It will, however, be noticed that entries
--
MAHESH CHANDRA GUPTA v. UNION OF INDIA & 959
ORS. [S.H. KAPADIA, J.]

77 and 78 in List I are composite entries and deal not only A
with the constitution and organisation of the Supreme Court
and the High Courts but also with persons entitled to
practise before the Supreme Court and the High Courts.
The only difference between these two entries is that
whereas the jurisdiction and powers of the Supreme Court B
are dealt with in entry 77, the jurisdiction and powers of
the High Courts are dealt with not by entry 78 of List I but
by other entries. Entries 77 and 78 in List I apart from
dealing with the constitution and organisation of the
Supreme Court and the High Courts also deal with persons c
entitled to practise before the Supreme Court and the High
Courts. This part of the two entries shows that to the extent
that the persons entitled to practise before the Supreme
Court and the High Court are concerned, the power to
l legislate in regard to them is carved out from the general D
power relating to the professions in entry 26 in'Ust Ill and
is made the exclusive field for Parliament. The power to
legislate in regard to persons entitled to pract,se before
the Supreme Court and the High Courts is thus\ excluded
from entry 26 in List Ill and is made the exclusive field for
E
legislation by Parliament only [Re : Lily Isabel Thomas, AIR
1964 SC 555 and also Durgeshwar v. Secretary, Bar
A
Council, Allahabad, AIR 1954 Allahabad 728]. Barring
those entitled to practise in the Supreme Court and the
High Courts, the power to legislate with respect to the rest
F
of the practitioners would still seem to be retained under
entry 26 of List Ill. To what extent the power to legislate in
regard to the legal profession still ,remains within the field
of entry 26 is not the question at present before us and
therefore it is not necessary to go into it in this appeal.
G
) 9. The Advocates Act was passed to amend and
consoHdate the law relating to legal practitioners and to
provide for the constitution of Bar Councils and an All India
Bar. Section 2(a) and (i) define an 'advocate' and a 'legal
practitioner'. Chapter II deals with the establishment of Bar H
960 SUPREME COURT REPORTS [2009] 10 S.C.R.

A Councils and their functions, viz., to admit persons on its
roll, to prepare and maintain such rol!, to entertain and
determine cases of misconduct against advocates on its
roll etc. Section 7 lays down the functions of the Bar
Council of India, that is, to prepare and maintain a
B common roll of advocates, to lay down the standards of
professional conduct and etiquette, to lay down procedure
to be followed by its disciplinary committee and the
disciplinary committee of each State Bar Council, to
exercise general supervision and control over State Bar
c Councils etc. Chapter Ill deals with admission and
enrolment of advocates. Section 16(1) provides that there
shall be two classes of advocates, senior advocates and
other advocates. Chapter IV deals with the right to practise.
Section 29 provides that subject to the provisions of this
Act and the rules made thereunder, there shall, as from the \
D
appointed day, be only one class of persons entitled to
practise the profession of law, namely, the advocates.
Section 30 provides that subject to the provisions of this
Act, every advocate whose name is entered in the common
roll shall be entitled as of right to practise throughout the
E territolies to which this Act extends in all courts including
the Supreme Court and before any tribunal or any other
authority before whom such advocate is by or under any '
law for the time being in force entitled to practice. Chapter
V deals with the conduct of advocates. Section 35 lays
F down that where on receipt of a complaint or otherwise a
State Bar Council has reason to believe that any advocate
on its roll has been guilty of professional or other
misconduct, it shall refer the case for disposal to its
disciplinary committee. The disciplinary committee has to
G fix a date for the hearing of the case and give a notice
thereof to the advocate concerned and to the Advocate l
General of the State. Sub-sec. (3) provides that such
committee after giving the advocate concerned and the
Advocate General an opportunity of being heard, may
H make, inter alia, an order suspending the advocate from
MAHESH CHANDRA GUPTA v. UNION OF INDIA & 961
ORS. [S.H. KAPADIA, J.]

practice as it may deem fit. Similar powers are also A
conferred on the Bar Council of India under ~. 36 in relation
to an advocate on the common roll. Section 37 gives a
right of appeal to the Bar Council of India by any person
aggrieved by an order of the disciplinary committee of a
State Bar Council. Section 38 confers a right of appeal to B
the Supreme Court on any person aggrieved by an order
by the disciplinary committee of the Bar Council of India
under s. 36 or s. 37 and empowers the Supreme Court to
pass such orders thereon as it deems fit.

10. The object of the Act is thus to constitute one common
c
Bar for the whole country and to provide machinery for its
regulated functioning. Since the Act sets up one Bar,
autonomous in its character, the Bar Coun~ils set up
thereunder have been entrusted with the power fo regulate
j the working of the profession and to prescribe rules of D
professional conduct and etiquette, and the power to
punish those who commit breach of such rules. The power
of punishment is entrusted to the disciplinary committees
ensuring a trial of an advocate by his peers. Sections 35,
36 and 37 lay down the procedure for trying complaints, E
punishment and an appeal to the Bar Council of India from
the orders passed by the State Bar Councils. As an
"' additional remedy s. 38 provides a further appeal to the
"<"
Supreme Court. Though the Act relates to the legal
practitioners, in its pith and substance it is an enactment F
which concerns itself with the qualifications, enrolment,
right to practise and discipline of the advocates. As
provided by the Act once a person is enrolled by any one
of the State Bar Councils, he becomes entitled to practise
in all courts including the Supreme Court. As aforesaid, the G
Act creates one common Bar, all its members being of
I J
one class, namely, advocates. Since all those who have
been enrolled have a right to practise in the Supreme Court
and the High Courts, the Act is a piece of legislation which
deals with persons entitled to practise before the Supreme H
962 SUPREME COURT REPORTS [2009] 10 S.C.R.

A Court and the High Courts. Therefore the Act must be held
to fall within entries 77 and 78 of List I. As the power of
legislation relating to those entitled to practise in the
Supreme Court and the High Courts is carved out from the
general power to legislate in relation to legal and other
B professions in entry 26 of List Ill, it is an error to say, as
the High Court did, that the Act is a composite legislation
partly falling under entries 77 and 78 of List I and partly
under entry 26 of List Ill.

11. In this view, the right of appeal to this Court under s.38
c of the Act creates a jurisdiction and power in relation to a
matter falling under entries 77 and 78 of the Union List and
the Act would, therefore, fall under clause (1) and not
clause (2) of Art. 138. The argument that s. 38 falls under
Art. 138(2) and is invalid on account of its having been
D enacted without a special agreement with the State \
Government is, therefore, without merit."

(emphasis supplied)

E 22. Apart from what is stated above, the judgment also
emphasizes the fact that the 1961 Act inter alia provides that
once a person is enrolled by any one of the State Bar Councils,
he becomes entitled to practice in all Courts including Supreme
Court. The 1961 Act creates one common Bar, all its members
F being of one class, namely, Advocates.

23. Thus, it becomes clear from the legal history of the
1879 Act, 1926 Act and 1961 Act that they all deal with a
person's right to practice or entitlement to practice. The 1961
Act only seeks to create a common Bar consisting of one class
G of members, namely, Advocates. Therefore, in our view, the
said expression "an advocate of a High Court" as understood,
both, pre and post 1961, referred to person(s) right to practice. l.
Therefore, actual practice cannot be read into the qualification
provision, namely, Article 217(2)(b). The legal implication of the
H 1961 Act is that any person whose name is enrolled on the
MAHESH CHANDRA GUPTA v. UNION OF INDIA & 963
ORS. [S.H. KAPADIA, J.]

State Bar Council would be regarded as "an advocate of the A
1 High Court". The substance of Article 217('.2)(b) is that it
prescribes an eligibility 'criteria based on "right to practice" and
not actual practice.

24. The question still remains as to why in Article 217(2)(b)
B
the Constitution makers have used the expression "an. advocate
of a High Court"?

~ 25. Answer to the above query is given by Basu's
Commentary on the Constitution of India, sixth edition, page
236, which reads as under: c
"Cl. (2): Qualifications for appointment as High
Court Judge. The points to be noted, in comparison with
the Government of India Act, 1935, are- (a) the exclusion
.. of Barristers of the United Kingdom who are not advocates D
of a High Court of India within the meaning of sub-cl. (b);
(b) the exclusion of members of the l.C.S. from post-
' Constitution appointments unless they satisfy cl. (2)(a).

It is clear from cl. (2) that all appointments to the Hign
Court Bench, made after commencement of the E
Constitution must go only to those who satisfy one of the
two tests laid down in sub-els. (a) and (b) of cl. (2)."
•
~----..:
26. Under the 1926 Act, which Act was in force when the
Constitution was framed, even a Barrister from United Kingdom F
was entitled to get himself enrolled as an advocate of a High
Court. He had no right to practice in the High Court without
getting himself enrolled. (see Nihal Chand Shastri v. Dilawar
Khan and Ors. reported \in AIR 1933 Allahabad 417).
G
27. We quote hereir\below the relevant paragraphs from
I
the judgment in Nihal Cfiat?d (supra), which read as follows:

" ... This Court under its powers conferred on it by the
Letters Patent is entitled to enrol advocates for practising
,,.. in this Court and Courts subordinate to it, vide Clause 7 H
964 SUPREME COURT REPORTS [2009] 10 S.C.R.

A which runs as follows:
y

"And we do hereby authorize and empower the
said High Court of Judicature at Allahabad to
approve, admit and enrol such and so many
Advocates, Vakils and Attorneys as to the said
B
High Court shall deem meet.... "

The High Court framed certain rules laying down the
qualifications needed for enrolment of advocates. The
rules now in force are to be found in Chap. 15 of the Rules
c of the Court. They are rules made by the Bar Council since
the Bar Councils Act, came into force, and they have been
approved by the High Court. Under Rule 1 of these rules:

"any Barrister of England... and any graduate of
D law of any University mentioned in the schedule,
who in each case has further gone through a course ·~
of training for one year... may present an application
for his admission to the roll of advocates of the
Court."

E The older rules more or less on similar lines. The
rules and the Clause 7, Letters Patent, show that a
Barrister of England as a Barrister has no right to practise
in the High Court or in any Court subordinate to the High
Court. Certain qualifications of different kinds are laid
F down for admission as advocates, and the fact that a
candidate is a Barrister of England is one kind of
qualification for enrolment. When a person who has taken
the law degree of Allahabad University is enrolled as an
advocate, he becomes as much an advocate of the
G Allahabad High Court as a Barrister of England. The
Rules of the High Court make no distinction, between the
two persons with different qualifications. Before the Bar
Councils Act was passed and was acted upon, the
Barristers from England were admitted on the roll of the
H High Court as advocate, while the Indian Graduates of law
MAHESH CHANDRA GUPTA v. UNION OF INDIA & 965
ORS. [S.H. KAPADIA, J.]

were admitted as vakils. Later on certain eminent vakils A
';/
were given the status of advocates and, thereupon, they
became as much advocates as Barristers from England
enrolled in the Allahabad High Court. In all these cases
the right of a Barrister to appear in the High Court or in
the Courts subordinate to the High Court arose from his B
enrolment as an advocate and not otherwise.

Having been enrolled as an advocate, the Barrister
~
or the Graduate at Lc:w of the Indian University acquires
certain privileges and the privilege is to appear, plead or
act in any suit or appeal, vide Rule 10 of the High Court
c
Rules in Chap. 15, p. 100. It is common ground that a
barrister in England as such is not entitled to act. He can
only plead. It follows from the Rules of the High Court of
Allahabad that the disability of a Barrister-at-law to act in
~
.),
England disappears on his bein~ enrolled as an advocate D
of the High Court. A Barrister-at-law in England not beir1g
entitled to act is not allowed to have a lien on any litigant's
papers or money, but a Barrister, who is an advocate of
the High Court of Allahabad, may have such a lien. This
is recognized by Rule 14, Chap. 15, (p. 101) of the High E
Court Rules. Rule 15 of the same Chapter at p. 102, lays
down that an Advocate (including a Barrister-Advocate) is
' entitled to appear, plead and act in any Court Subordinate
'f
...
,
to the High Couct. In the province of Agra there are no
Solicitors, and a Barrister-Advocate practising in the High F
Court or in any Subordinate Court is entitled to see his
clients and to settle his fees. This he cannot do in England.

From what has been said, it follows that the peculiar
position of a Barrister-at-law in England disappears in the
G
Province of Agra on his being admitted as an Advocate
.. 1 of the High Court. He combines in himself the capacities
of a Barrister and Solicitor of England. He is as much
subject to the disciplinary jurisdiction of the High Court as
a non-Barrister-Advocate, while a Barrister of England
H
966 SUPREME COURT REPORTS [2009] 10 S.C.R.

A while practising there is not an officer of the Court and in
the case of misconduct, his case is referred to the ...
Benchers of the Inn to which he belongs. In England a
Barrister cannot act, cannot receive a client or receive
instructions from him except through a Solicitor. But this
B disability does not exist in him in the Province of Agra, if
he has been enrolled as an advocate." (emphasis
supplied)

28. The point to be noted is that powers vested in the High ..
Court by the Letters Patent the qualification prescribed for
c enrolment as an Advocate of the High Court was the law
degree of Allahabad University or that the candidate is a
Barrister of England. Similarly, under Section 220(3) of the
Government of India Act, 1935 various categories of persons
were qualified for appointment as a Judge of the High Court
D which included a Barrister, a Member of Indian Civil Service
etc .. To cortfine the qualification for appointment as a Judge of
a High Court to only one instead of four categories mentioned
in section 220(3), theBoostitution framers have used only one
consolidated expression, namely, "an advocate of a High
E Court". This expression finds place even in the 1961 Act, which
has been enacted in order to consolidate various categories
into one class, namely, Advocates [see judgment of this Court )
in O.N. Mohindroo (supra)]. It is for this reason that the
~
Supreme Court in the case of Prof. C.P. Agarwal (supra) has
....
F observed vide paragraphs 6 and 9 as under:
"6. Apart from this aspect, some of the earlier statutes
bearing on the same subject have also used the very
same or similar expression. The Legal Practitioners Act,
1879 defined by Section 3 a "Legal Practitioner" as
G meaning an Advocate, Vakil or Attorney of any High Court,
a Pleader, Mukhtar or Revenue-agent. Section 4 of that Act ~-
provided:

"Every person now or hereafter entered as an
H Advocate or Vakil on the roll of any High Court
MAHESH CHANDRA GUPTA v, UNION OF INDIA & 967'
ORS. [S.H. KAPADIA, J.]

under the Letters Patent constituting such Court, or A
under Section 41 of this Act, or enrolled as a
"' pleader in the Chief Court of the Punjab under
Section 8 of this Act, shall be entitled to practice in
all the Courts subordinate to the Court on the roll
of which he is entered--and any person so entered B
who ordinarily practices in the Court on the roll of
which he is entered or some Court subordinate
thereto shall, notwithstanding anything herein
contained, be entitled, as such, to practice in any
Court in the territories to which this Act extends c
other than a High Court on whose roll he is not
entered, or, with the permission of the Court--in any ·
High Court on whose roll he is not entered--. "

Section 41 of the Act empowered a High Court to make
rules as to the qualifications and admission of prop~r D
"'" persons to be "Advocates of the Court" and subject to such
rules to enrol such and so many Advocates as it thought
fit. These provisions clearly show that advocates enrolled
under Section 41 were enrolled as advocates of a High
Court and were entitled, once enrolled, to practice either E
in the High Court or courts subordinate to such High Court
or both. There was thus in the case of advocates so
~ enrolled no distinction between those who practiced in the
~
High Court and those who practi.ced in the courts
subordinate to such High Court as they were entitled on F
enrolment, as aforesaid, to practice either in the High Court
or in a court or courts subordinate thereto or both. The
Indian Bar Councils Act, XXXVlll of 1926 also defined an
'advocate' meaning one "entered in the roll of advocates
of a High Court under the provisions of this Act." Section G
8 laid down that no person w0uld be entitled as of right to
.t practice in any High Court uriless his name was entered
in the roll of "the advocates of the High Court maintained
under this Act." Under Section 8(2), the High .Court was
required to prepare and maintain "a roll of advocates of H
968 SUPREME COURT REPORTS [2009] 10 S.C.R.

/
A the High Court" in which should be entered the names of
(a) all persons who were, as advocates, vakils or pleaders, Y"

entitled as of right to practice in the High Court immediately
before the date on which this section came into force in
respect thereof; and (b) all other persons who were
B admitted to be "advocates of the High Court" under this
Act. Section 9 empowered the Bar Council to make rules
to regulate the admission of persons to be "advocates of
the High Court", and Section 10 gave power to the High
Court in the manner therein provided to reprimand,
suspend or remove from practice "any advocate of the
c High Court" whom it found guilty of professional or other
misconduct. Section 14(1) of the Act provided that an
advocate, i.e., one whose name was entered under this
Act in the roll of advocates of a High Court, shall be entitled
as of right to practice in the High Court of which he is an
D
advocate or in any other court save as otherwise provided I

by Sub-section 2 or by or under any other law for the time
being in force. Once, therefore, the name of an advocate
was entered in the roll of advocates of a High Court under
one or the other Act, he was entitled to practice in the High
E Court and in courts subordinate thereto or in any other
court subject of course to the provisions aforesaid. He was
thus an advocate of the High Court irrespective of whether
)
he practiced in the High Court or in the courts subordinate
thereto, and as seen from Section 10 of the Bar Councils
F Act, he became amenable to the disciplinary jurisdiction
of the High Court by reason of his being enrolled as an
advocate of the High Court. The expression "an advocate
of a High Court" must, therefore, mean, in the light of these
provisions, an advocate whose name has been enrolled
G as an advocate of a High Court, no matter whether he
practiced in the High Court itself or in courts subordinate
to it or both. The expression "an advocate or a pleader of
a High Court" having thus acquired the meaning as
""·
aforesaid, it must be presumed that a similar expression,
H namely "a pleader of a High Court for a period of not less
MAHESH CHANDRA GUPTA v. UNION OF INDIA & 969
ORS. [S.H. KAPADIA, J.]

than ten years" was used in the same sense in Section A
101 (3)(d) of the Government of India Act, 1915, when that
section laid down the qualifications for the office of a
Judge of a High Court in.the case of a pleader. The same
phraseology was also repeated in Section 220(3)(d) of the
Government of India Act, 1935, except for one change, B
namely, that in calculating 10 years' standing, his standing
as a pleader of 2 or more High Courts in succession was
also to be included.

0
9. Counsel next relied on Article 233(2) in support of the
construction suggested by him of Article 217(2)(b) and
pointed out that wherever the Constitution did not wish to
insist on an appointee having been an advocate practising
.,,_
in a High Court, it has used a different expression, namely, D
an advocate simpliciter, as in Article 233(2). Article 233
deals with appointment of district judges and Clause 2
thereof provides that a person not already in the service
of the Union or the State shall only be eligible to be
appointed a district judge if he has been for not less than E
seven years an advocate or a pleader and is
recommended by the High Court for appointment. It is true
... that in this clause the word "advocate" is used without the
qualifying words "of a High Court". It is difficult, however,
to see how tne fact that the word "advocate" only used in F
connection with the appointment of a district judge would
assist counsel in the construction suggested by him of
the expression "advocate of any High Court" in Article
217, or that that expression must mean an advocate who
has had the necessary number of years' practice in the
G
.~1 High Court itself. The distinction, if any, between the words
"an advocate" in Article 233(2) and the words "an advocate
of a High Court" in Article 217(2)(b) has no significance
in any event after the coming into force of the Advocates
Act, 1961, as by virtue of Section 16 of that Act there are
H
970 SUPREME COURT REPORTS [2009] 10 S.C.R.

A now only two classes of persons entitled to practice,
namely, senior advocates and other advocates."

(emphasis supplied)

29. To complete our discussion, we may also mention that
B the expression "two or more such courts in succession" in
Article 217(2)(b) is not of any real relevance. Prior to the 1961
Act, when a person was an advocate enrolled in a High Court,
the words "in succession" suggested that a person enrolled in
more than one High Court could not multiply his years of
C enrolment by the number of courts in which he stood enrolled.
For example, a person enrolled for five years in two High Courts
simultaneously would not be an advocate of ten years standing.
If he was enrolled in more than one court in succession only
then would this be satisfied.
D
Justiciability of appointments under Article 217(1 ):

"The overarching constitutional justification for judicial
review, the vindication of the rule of law, remains constant,
but mechanism for giving effect to that justification vary".
E .. .Mark Elliott

"Judicial review must ultimately be justified by constitutional
principle." .. .Jowett .
F 30. In this case, we are concerned with the mechanism for
giving effect to the Constitutional justification for judicial review.
As stated above, "eligibility" is a matter of fact whereas
"suitability" is a matter of opinion. In cases involving lack of
"eligibility" writ of quo warranto would certainly lie. One reason
being that "eligibility" is not a matter of subjectivity. However,
G "suitability" or "fitness" of a person to be appointed a High Court
Judge: his character, his integrity, his competence and the like
are matters of opinion.

31. Appointment under Article 217(1), vis-a-vis
H qualification under Article 217(2), is the function of participatory
MAHESH CHANDRA GUPTA v. UNION OF INDIA & 971
., ORS. [S.H. KAPADIA, J.]

integrated process in which there is deliberation and A
consultation between the Supreme Court Collegium and the
High Court Collegium. In cases of consensus, the question of
primacy does not arise. The Supreme Court Collegium does
not sit in appeal over the recommendations of the High Court
Collegium. The concept of plurality of Judges in the formation B
of the opinion of the CJI is one of inbuilt checks against the
likelihood of arbitrariness or bias. At this stage, we reiterate
that 'lack of eligibility" as also "lack of effective consultation"
would certainly fall in the realm of judicial review. However, when
we are earmarking a joint venture process as a participatory C
consultative process, the primary aim of which is to reach an
agreed decision, one cannot term the Supreme Court
- Collegium as superior to High Court Collegium. The Supreme
Court Collegium does not sit in appeal over the
recommendation of the ljigh Court Collegium. Each Collegium
constitutes a participant in the participatory consultative D
process. The concept of primacy and plurality is in effect
primacy of the opinion of the Chief Justice of India formed
collectively. The discharge of the assigned role by each
functionary helps to transcend the concept of primacy between
them. It is important to note that each constitutional functionary E
involved in the participatory consultative process is given the
task of discharging a participatory constitutional function, there
; is no question of hierarchy between these constitutional
functionaries. Ultimately;- the object of reading such participatory
consultative process into the Constitutional scheme is to limit F
judicial review restricting it to specified areas by introducing a
judicial process in making of appointment(s) to the higher
judiciary. These are the norms, apart from modalities, laid down
in the case of Supreme Court Advocates-on-Record
Association (supra) and also in the judgment in Re. Special G
Reference No. 1of1998 (supra). Consequently, judicial review
lies only in two cases, namely, "lack of eligibility" and "lack of
. effective consultation". It will not lie on the content of
consultation.
H
972 SUPREME COURT REPORTS [2009] 10 S.C.R.

A Application of Principles enumerated above to the facts
of the Present Case:

32. Having spelt out the dichotomy between appointment
on the basis of fitness/suitability under Article 217(1) vis-a-vis
qualifications under Article 217(2), we are of the view that
8
respondent no. 3 herein satisfies the qualifications prescribed
under Article 217(2)(b). For this purpose, we are reading
Section 217(2)(b) with Explanation (aa). Respondent No. 3 has
worked as a Member of ITAT between the period 3.12.1997
and 6.8.2008 (11 years). Prior thereto, he has worked as
C Additional Law Officer (Director), Law Commission of India. He
was admittedly enrolled as an Advocate of the High Court on
13.9.1975. Applying the principles enumerated hereinabove,
both, with regard to entitlement to practice and computability
of the period during which respondent no. 3 has worked in ITAT,
D he stood qualified for appointment as a Judge of the Allahabad
High Court. Therefore, this case does not suffer from the vice
of lack of eligibility. As stated above, in this case, the matter
has arisen from the writ of quo warranto and not from the writ
of certiorari. The bio-data of respondent no. 3 was placed
E before the Collegiums. Whether respondent no. 3 was
"suitable" to be appointed a High Court judge or whether he
satisfied the fitness test as enumerated hereinabove is beyond
justiciability as far as the present proceedings are concerned.
We have decided this matter strictly on the basis of the
F Constitutional scheme in the matter of Appointments of High
Court Judges as laid down in the Supreme Court Advocates-
on-Record Association (supra) and in Re. Special Reference
No. 1of1998 (supra). Essentially, having worked as a Member
of the Tribunal for 11 years, respondent no. 3 satisfies the
G "eligibility qualification" in Article 217(2)(b) read with Explanation
(aa). •
33. One of the submissions advanced before us on behalf
of the Original Petitioner was that consultation by members of
the two Collegiums was on the basis of the performance of
H
MAHESH CHANDRA GUPTA v. UNION OF !NOIA & 973
ORS. [S.H. KAPADIA, J.]

respondent no. 3 as a member of ITAT, the source of A
'I appointment being from "seNice". It was urged that there was
no consultation regarding respondent no. 3 under Article
217(2)(b ). It was urged that if the perf9rmance of respondent
no. 3 during the period he was holding the office of the Member
of ITAT was the subject matter of consultation, then, it cannot B
be said to be a consultation at all as there has not been any
consultation regarding respondent no. 3 under Article 217(2)(b).
In other words, the contention before us was that since
respondent no. 3 was shown as a seNice Judge, he should
have been considered under Article 217(2)(a). This argument c
advanced on behalf of the Original Petitioner is misconceived.
The very purpose for enactment of Article 217(2)(a) and Article
217(2)(b) is to provide for a mix of those from the Bar and those
from SeNice who has the past experience of working as judicial
}
officers/officers in Tribunals. This was the object behind a policy D
decision taken in the Chief Justices' Conference of 2002. The
object of adding Explanation (aa) is to complement Explanation
(a) appended to Article 217(2) and, together, they have
liberalised the source of recruitment for appointment to the High
Court. Therefore, for eligibility purposes clause (aa) of the
E
Explanation read with sub-clause (b) of clause (2) of Article 217
would apply to Members of ITAT, in the matter of computation
·~ of the prescribed period for an advocate to be eligible for being
~ appointed as a High Court Judge. This aspect of "eligibility"
has nothing to do with "suitability".
F
34. Coming to the question of consultation, it has been
submitted on behalf of the Original Petitioner that there has
been lack of effective consultation, particularly when "reliable
information" supplied-by the three Judges Sub-committee
appointed to examine the quality of judgments rendered by G
. ,c;
respondent no. 3 stood withheld from the Supreme Court
Collegium. According to the Original Petitioner, the Chief justice
of the Allahabad High Court had appointed a three Judges
Sub-committee to examine the quality of judgments of the
persons coming under the zone of consideration from "seNice" H
974 SUPREME COURT REPORTS [2009] 10 S.C.R.

A quota and, therefore, if the Sub-committee gave adverse
comments about the reputation of respondent no. 3 in the
course of his working as a Member of ITAT and the Chief
Justice of the Allahabad High Court fails to forward that
information to the Supreme Court Collegium, it would certainly
B constitute a ground for judicial review based on lack of effective
consultation. In this connection, reliance has been placed on
paragraphs 29 to 32 of the judgment in Re. Special Reference
No. 1 of 1998, which read as under:

"29. The majority judgment in the Second Judges case,
c (1993) 4 SCC 441 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
D
"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
E of one or more senior Judges of that High C 1urt ... ."

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
F 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 gre9test
weight", the views of other Judges of the High Court who
G 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
H is of no consequence that the High Court is not their parent
.
MAHESH CHANDRA GUPTA v. UNION OF INDIA & 975
ORS. (S.H. KAPADIA, J.]
High Court and they were transferred there. The objective A
~
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. B
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
c
collegium's 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
-t
:.
Judges of the Supreme Court.
D
31. In the context of the judicial review of appointments, the
majority judgment in the Second Judges case said: (SCC
pp. 707-08, para 480)

"Plurality of Judges in the formation of the opinion E
of the Chief Justice of India, as indicated, is another
inbuilt check against the likelihood of arbitrariness
i
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." F

The judgment added: (SCC p.708, para 482)

"Except on the ground of want of consultation with
the named constitutional functionaries or lack of G
/'i
any condition of eligibility in the case of an
appointment, ... these matters are not justiciable on I
any other ground ... ." .I

- 32. Judicial review in the case of an appointment or a
H

••
976 SUPREME COURT REPORTS (2009] 10 S.C.R.

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
B 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
c 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
D
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."

E (emphasis supplied)

35. We find no merit in the above submissions. Apart from
legal niceties, on facts, we find on meticulous scrutiny of the
confidential files that the content of the Report submitted by the
F Sub-committee containing information regarding the lack of
actual practice as an Advocate of the High Court and the
working of respondent no. 3 as a Member of ITAT during his
nascent years in office was before the Supreme Court
Collegium, albeit from a different channel. In fact, the
G information contained in the Report of the Sub-committee was
also brought to the notice of the Supreme Court Collegium,
though through a different route. Further, that information was
meticulously vetted and the recommendation of the High Court
Collegium for appointment was sent back by the Supreme
Court Collegium to the High Court Collegium for
H

I
MAHESH CHANDRA GUPTA v. UNION OF INDIA & 977
ORS. [S.H. KAPADIA, J.]

reconsideration. The matter was re-examined by the High Court A
Collegium. That Collegium reiterated its position and it
recommended once again the name of respondent no. 3 for
appointment as a High Court Judge. On facts, we hold, that
there was effective consultation. Since the consultation process
stood complied with, its content was not amenable to judicial B
review (see para 32, quoted hereinabove, of the judgment in
Re. Special Reference No. 1 of 1998).

36. Before concluding, we may state that "continuity of an
Institution" is an important Constitutional principle in the C
Institutional decision-making process which needs to be
insulated from opinionated views based on misinformation. At
the end of the day "trust" in the decision-making process is an
important element in the process of appointment of Judges to
the Supreme Court and the High Court, which, as stated above,
is the function of an integrated participatory consultative D
process. We are constrained to make this remark in view of,
to say the least, baseless allegations made in the
supplementary affidavit dated 15.4.2009 against institutional
decision making process.
E
37. For reasons given hereinabove, Transferred Case (C)
No. 6 of 2009 stands dismissed.

R.P. Transferred case dismissed.

-