REGISTRAR GENERAL, HIGH COURT OF MADRASversusR. GANDHI & ORS.

                       [2014] 4 S.C.R. 77


     REGISTRAR GENERAL, HIGH COURT OF MADRAS                          A
                                 v.
                     R. GANDHI & ORS.
        (Special Leave Petition (C) Nos. 892-893/2014)
                        (MARCH 5, 2014)
                                                                      B
       [DR. B.S. CHAUHAN, J. CHELAMESWAR AND
                    M.Y. EQBAL, JJ.]

       CONSTITUTION OF IND/A, 1950: Article 217 -
 Appointment of High Court Judge - Writ petition seeking              C
 direction to Union of India and Supreme Court Col/egiums to
 return the fist of 12 persons comprising of ten Advocates and
 two District Judges for consideration by the collegiums of
 Supreme Court for appointment as Judges of the Madras
 High Court on the ground of non-suitability - Maintainability        D
 of - Held: The writ petitioners took a premature step by filfng
 writ petitions seeking a direction to Union of India to return the
 list sent by the col/egium of the Madras High Court without
 further waiting its consideration by the Supreme Court
 collegium - The fact-situation is that even after the President      E
 of India accepts the recommendations and warrants of
 appointment are issued, the Court is competent to quash the
 warrant - In such a situation, the writ petitioners or the
 members of the Bar could approach the Chief Justice of India;
 or the Law Minister - But instead of resorting to such a             F
 procedure, the writ petitioners had adopted an unwarranted
 short-cut knowing it fully well that on the ground of the
 suitability, the writ petitions were not maintainable.

     JUDICIARY: Judicial Appointments - Guiding factors -
 Discussed.                                               G

      JUDICIAL REVIEW: Judicial Appointments - Held:
  Judicial review is permissible only on assessment of eligibility
- and not on suitability.
                                77                                    H
    78       SUPREME COURT REPORTS            [2014] 4 S.C.R.


A        The collegium of the Madras High Court consisting
    of the Chief Justice and two senior most Judges
    recommended a list of 12 persons comprising of ten
    advocates and two District Judges for consideration by
    the collegium of Supreme Court for appointment as
B   Judges of the Madras High Court. The said list was
    forwarded to the Ministry of Law and Justice,
    Government of India, the Supreme Court of India as well
    as to the Government of Tamil Nadu as required under
    the law.
c      The respondent filed a writ petition before the Madras
  High Court seeking a direction to the Union of India and
  the Supreme Court collegium to return the said list as the
  recommendations therein were not suitable as per the
  assessment of the respondent and other members of the
D Bar for elevation. The Division Bench of the Madras High
  Court entertained the writ petition and passed the orders
  dated 8.1.2014 and 9.1.2014. In the first order, an Interim
  direction was issued directing the Ministry of Law and
  Justice, Government of India to maintain the status quo,
E while the order dated 9.1.2014 restrained the Government
  of Tamil Nadu from making any recommendation in this
  regard and further to maintain the status quo till 21.1.2014.
  The Madras High Court through Registrar General filed
  the instant special leave petition. The Supreme Court on
F 13.01.2014 noted the submission that one of the Sitting
  Judge of Madras High Court entered into the court room
  wherein the writ petition was being heard and made
  certain suggestions to the Bench hearing the matter and
  as a result there was commotion in the court room and
G no conducive atmosphere to proceed further with the
  matter. The Supreme Court restrained the High Court to
  proceed further with the matter and vacated the interim
  order passed by the High Court to maintain status quo
  regarding the process of the recommendations for the
H reason that it was merely a recommendations and the



                                         •
 REGISTRAR GENERAL, HIGH COURT OF MADRAS                  79
            v. R. GANDHI & ORS.
said recommendation has to be filtered at various levels.       A

    Disposing of the special leave petitions, the Court

      HELD: 1. The question of an effective representation
 on the Bench and the qualitative assessment of
 elevations are not only to be governed by the magnitude        B
of the practice of a lawyer or only his social or legal
 background. These are factors to be considered
alongwith the other qualities of intellect and character
 including integrity, patience, temper and resilience. The
wisdom and legal learning of a particular individual            C
coming from a particular social background may have
 leanings and individual judges are not un-afflicted by their
notions of social, economic and political philosophy, but
such matters fall within the realm of suitability to be
considered by the collegium making recommendations              D
or accepting the same for appointment as a Judge. The
issue of a broad representation has also to be looked into
from the point of view that it is necessary to ensure that
a more representative Bench does not become a less
able Bench. Appointments cannot be exclusively made             E
from any isolated group nor should it be pre-dominated
by representing a narrow group. Diversity therefore in
judicial appointments to pick up the best legally trained
minds coupled with a qualitative personality, are the
guiding factors that deserve to be observed uninfluenced        F
by mere considerations of individual opinions. It is for
this reason that collective consultative process has been
held to be an inbuilt mechanism against any arbitrariness.
[Paras 11, 12] [88-G-H; 89-A-E]

    2. The conduct of a Sitting Judge who entered in the G
court room was unexpected, uncharitable and
ungenerous, and to say the least it was indecorous. In
ordinary life such incidents are not reviewed with
benevolence or generosity but in view of a larger
constitutional issue of the justiciability of the cause it is H
    80       SUPREME COURT REPORTS              [2014] 4 S.C.R.


A  held to be not necessary to respond to such unusual
   circumstances. Additionally, the Judge was not made a
   party to the proceedings by the Division Bench of the
   High Court before it nor the oral prayer to that effect is
   accepted by this court. The exceptional personal conduct
B of the Judge does not require any judicial response for
   investigating the unusual circumstances and scrutinising
   the same as it is not necessary to decide the issue at
   hand which can be otherwise disposed off in the manner
   as indicated. The Judge may have found himself caught
c in a conflict of class or caste structure and it appeared
   that matured patience might have given way to injure
   rules of protocol. Such aspects may require a more
 · serious judicial assessment if required in future and
   therefore this question is left entirely open. [Paras 13 and
D 14) (89-F-H; 90-A-D]

         Supreme Court Advocates-on-Record Assn. v. Union of
    India (1993) 4 SCC 441: 1993 (2) Suppl. SCR 659 ; Special
    Reference No.1 of 1998 7 SCC 739; 1998 (2) Suppl. SCR
    400; Mahesh Chandra Gupta v. Union of India (2009) 8 SCC
E   273: 2009 (10) SCR 921; C. Ravichandran Iyer v. Justice AM.
    Bhattacharjee & Ors. (1995) 5 SCC 457: 1995 (3) Suppl.
    SCR 319 - relied on.

       3. It is apparent that judicial review is permissible only
F on assessment of eligibility and not on suitability. It is not
  a case where the writ petitioners could not wait till the
  maturity of the cause i.e. decision of the collegium of this
  Court. They took a premature step by filing writ petitions
  seeking a direction to Union of India to return the list sent
G by the collegium of the Madras High Court without further
  waiting its consideration by the Supreme Court
  collegium. Even after the President of India accepts the
  recommendations and warrants of appointment are
  issued, the Court is competent to quash the warrant. In
  such a fact-situation, the writ petitioners or the members
H
 REGISTRAR GENERAL, HIGH COURT OF MADRAS                     81
            v. R. GANDHI & ORS.
of the Bar could approach the Chief Justice of India; or          A
the Law Minister, but instead of resorting to such a
procedure, the writ petitioners had adopted an
unwarranted short cut knowing it fully well that on the
ground of the suitability, the writ petitions were not
maintainable. [Paras 20, 21] [95-E-G; 96-B-C]                     B

    Shri Kumar Padma Prasad v. Union of India & Ors. AIR
1992 SC 1213: 1992 (2) SCR 109 ; B.R. Kapur v. State of
Tamil Nadu & Anr. AIR 2001 SC 3435: 2001 (3) Suppl. SCR
191 - relied on.
                                                                  c
                    Case Law Reference:
    1993 (2) Suppl. SCR 659            Relied on   Para 1
    1998 (2) Suppl. SCR 400            Relied on   Para 1
                                                                  D
    2009 (10) SCR 921                  Relied on   Para 3
    1995 (3) Suppl. SCR 319            Relied on   Para 17
    1992 (2) SCR 109                   Relied on   Para 20
    2001 (3) Suppl. SCR 191            Relied on   Para 20        E

     CIVIL APPELLATE JURISDICTION : Special Leave
Petition (Civil) Nos. 892-893 of 2014.

    From the Judgment and Order dated 08.01.2014 of the
High Court of Madras in MP No. 1/2014, WP No. 375/2014            F
dated 09/01/2014 in MP No. 1/2014, WP No. 375/2014.
                                WITH
T.C. (C) No. 31 of 2014.
                                                                  G
T.C. (C) No. 29 & 30 of 2014.

    Mohan Parasaran, SG, G.E. Vahanvati, AG, L. Nageswara
Rao, R.K. Khanna, ASGs P.H. Parekh, K.S. Mahadevan,
Krishna Kumar R.S., Rajesh Kumar, Prabhakaran, Ram
                                                                  H
    82       SUPREME COURT REPORTS              [2014] 4 S.C.R.


A Sankar, Aanada Selvam, Mayil Samy, Ravindra Keshavrao
  Adsure, G. Ramakrishna Prasad, Mohd. Wasay Khan,
  Suyodhan Byrapaneni, Filza Moonis, Bharat J. Joshi, Priya
  Hingorani, D.L. Chidananda, B.V. Balaram Das, N.
  Meyyappan, Gurkirat Kaur, Seema Rao, B. Balaji, R. Rakesh
B Sharma, A. Selvinraja, G. Balaji, Mahalakshmi Pavani, D.
  Durga Devi, Shjarath Chandran, Avinash Wadhwani, Sarath
  Tokas, Chandra Prakash, Aishwarya Bhati, Piyush Kanti Roy,
  Gp. Capt Karan Singh Bhati for the appearing parties.

         The Judgment of the Court was delivered by
c
       DR. B.S. CHAUHAN, J. 1. The issue of selection and
  elevation to the office of a High Court Judge has engaged the
  attention of this Court. The issue of such selection reflecting
  transparency, objectivity and constitutional sustainability has
D engaged the attention of this Court since this cause came to
  be espoused and dealt with by a nine-Judge Bench of this
  Court in Supreme Court Advocates-on-Record Assn. v. Union
  of India, (1993) 4 sec 441, more particularly known as
  Second Judges case.
E
         The said decision also became a subject matter of a
    Presidential Reference being Special Reference No.1 of
    1998 that was answered again by a nine-Judge Bench reported
    in (1998) 7 sec 739.

F      2. One of the issues involved in both these decisions has
  been issue of judicial review of appointments as a High Court
  Judge or a Supreme Court Judge. The Second Judges case
  (supra) answered it in paragraphs 480 to 482 of the aforesaid
  decision and the Special Reference also answered the same
G emphasising the limited scope of judicial review and restrained
  thejusticiability of such recommendations and appointment of
    Ju~es.

      3. More recently, the issue with regard to the elevation of
H a High Court Judge on a recommendation of the collegium
REGISTRAR GENERAL, HIGH COURT OF MADRAS                         83
  v.. R. GANDHI & ORS. [DR. B.S. CHAUHAN, J.]
came to be scrutinised in a challenge raised before the               A
Allahabad High Court that came to be finally decided by this
Court in Mahesh Chandra Gupta v. Union of India (2009) 8
SCC 273. It was again held therein following the aforesaid
decisions that suitability of a recommendee and the
consultation are not subject to judicial review but the issue of      B
lack of eligibility or an effective consultation can be scrutinised
for which a writ of quo warranto would lie.

     4. In the aforesaid backdrop, the present petitions came
to be entertained questioning the orders of the Madras High           C
Court dated 8.1.2014 and 9.1.2014 by which and whereunder
the Madras High Court entertained writ petitions and passed
interim orders to maintain status quo regarding the process of
recommendation of 12 aspirants to the aforesaid office after
the Chief Justice of the Madras High Court had forwarded the
said recommendations to the Supreme Court collegium for               D
consideration. The restraint order also directed the various
constitutional al!thorities including the State Government and
the Union Government to act accordingly as the prayer made
in the petitions was to return back the recommendations on the
allegation that the recommendations were not in conformity with       E
an effective consultative process and that they were otherwise
for reasons disclosed unacceptable.

     5. This Court vide order dated 13.1.2014 entertained the
Special Leave Petitions (Civil) Nos. 892-893 of 2014 filed by         F
the Madras High Court against the orders passed by the
Madras High Court on 8.1.2014 and 9.1.2014 in Writ Petition
No. 375 of 2014, restraining the High Court to proceed with the
hearing of the said writ petition and issued suo motu show
cause as to why the said writ petition be not transferred for         G
hearing to this court. It appears that in the meanwhile, Writ
Petition No. 108212014 titled S. Doraisamy v. The Registrar
General, Supreme Court of India & Ors. and Writ Petition No.
111912014 titled P. Rathinam v. Union of India & Ors., dealing
with the same subject matter had also been filed before the
                                                                      H
    84       SUPREME COURT REPORTS                  [2014] 4 S.C.R.


A   Madras High Court. The Madras High Court preferred transfer
    petitions to transfer the said two writ petitions to this court for
    hearing alongwith transferred case arising out of WP (C) No.
    375/2014.

         Permission to file TP (C) arising out of D.No.3826/2014
8
    is granted. We allow the transfer petitions and all the three
    aforesaid writ petitions stand transferred to this Court.

       Thus, in view thereof, the Special Leave Petitions (C) Nos.
  892-893/2014 have become insignificant and stand disposed
C of accordingly.

         6. The facts and circumstances giving rise to these cases
    are that:

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

F       B. The writ petitioner, Mr. R. Gandhi, Senior Advocate, filed
  Writ Petition No. 375 of 2014 before the Madras High Court
  seeking a direction to the Union of India an~ the Supreme
  Court collegium to return the said list as the recommendees
  therein were not suitable as per the assessment of the writ
G petitioner and other members of the Bar for elevation. More so,
  the collegium of the High Court did not recommend the name
  of the eligible advocates belonging to different castes. The
  Hon'ble Chief Justice and first senior most Judge did not hail
  originally from Tamil Nadu so they were unable to understand
H and appreciate the complex social structure of the State of Tamil
 REGISTRAR GENERAL, HIGH COURT OF MADRAS.                   85
   v. R. GANDHI & ORS. [DR. S.S. CHAUHAN, J.]
Nadu.                                                             A
     C. The Division Bench of the Madras High Court
entertained the writ petition and passed the orders dated
8.1.2014 and 9.1.2014. According to the first order, an interim
direction was issued directing the Ministry of Law and Justice,
                                                                  8
Government of India to maintain the status quo, while the order
dated 9.1.2014 restrained the Government of Tamil Nadu from
making any recommendation in this regard and further to
maintain the status quo till 21.1.2014.

    D. Aggrieved, the Madras High Court through Registrar         C
General preferred Special Leave Petition (C) Nos. 892-893 of
2014, wherein after hearing the learned Attorney General,
appearing for the petitioner - High Court, this Court on
13.1.2014 passed the following order:
                                                                  D
    "Mr. G.E. Vahanvati, learned Attorney General appearing
    on behalf of the petitioner has submitted that the Madras
    High Court in the impugned judgments itself, has taken
    note of the judgment of this Court in Mahesh Chandra
    Gupta vs. Union of India, 2009 (8) SCC 273, wherein it
    has been quoted that judicial review is not permissible       E
    on the ground of suitability of the candidate whose name
    has been recommended, therefore, the High Court ought
    not to have entertained the petition.

          Secondly, it has been submitted that one of the         F
    Hon'ble Judge has entered into the Court and made
    certain suggestions to the Bench hearing the case and
    there had been commotion in the Court, therefore, there
    is no conducive atmosphere where the matter should be
    permitted to be continued with the said High Court.           G

         In view of the above, issue notice to the
    respondents returnable in two weeks as to why this case
    should not be transferred to this Court and heard by a
    Bench of minimum three judges. In addition to the
                                                                  H
    86       SUPREME COURT REPORTS                [2014] 4 S.C.R.


A        normal mode of service, dasti service, is permitted.

                Meanwhile, the High Court is restrained to proceed
         further with the matter in W.P.No.37512014 and the
         interim order passed by the High Court to maintain status
         quo regarding the process of the recommendations
B        stands vacated for the reason that it was merely a
         recommendation and the said recommendation has to
         be filtered at various levels and it will take a long time.

               List after two weeks. "
c       E. When the matter came up for hearing on 18.2.2014,
  Shri Prabhakaran, learned senior counsel appearing on behalf
  of the writ petitioner made a statement that the Supreme Court
  collegium had returned the entire list to the Madras High Court
  for reconsideration, the matter rendered infructuous. The Court
0
  passed the order dismissing the Writ Petition as having
  become infructuous. However, since two other writ petitions had
  already been filed in the Madras High Court with respect to the
  same subject matter, the High Court filed the transfer petitions.
  Some of the learned counsel appearing in these cases
E suggested that the matter required to be heard on merit. As
  the order passed earlier had not been signed, the matter was
  adjourned to be listed for hearing on 25.2.2014.

        7. When the matter came on Board on 25.2.2014, the
F learned Attorney General and other Advocates appearing in
  these cases insisted that matters must be heard at least to
  decide the issue of maintainability otherwise in future, it would
  be impossible to complete the process of appointment of
  Judges in the High Court, particularly when sitting Judges of
G the High Court also have started appearing before the Bench
  hearing the case in support of the contentions of the writ
  petitioners.

        8. Shri Prabhakaran, learned senior counsel, has
    submitted that the advocates - recommendees were not suitable
H
 REGISTRAR GENERAL, HIGH COURT OF MADRAS                     87
   v. R. GANDHI & ORS. [DR. S.S. CHAUHAN, J.]
for appointment as a Judge of the Madras High Court; and the A
collegium failed to consider the various other eligible and
suitable advocates practicing before the Madras High Court
having different social backgrounds. In a democratic set-up, it
is the sharing of the power and all citizens of this country
irrespective of any caste or creed, who are eligible and suitable B
for the post, have a right to be considered for appointment. The
collegium has a "duty" to consider the eligible and suitable
Advocates belonging to all sections of the society to ensure
wider representation. It may have a larger social dimensions if
certain segments of society are not adequately represented on     c
the Bench. The ethos of pluralistic democracy or diverse
unequal India should be humane, tolerant and reminiscent, yet
balancing the contemporary realities which in the case are
agitated on the lines of caste and their inclusion in mainstream
of public life. The spirit of equality pervades the provisions of D
the Constitution, as the main aim of the founders of the
Constitution was to create an egalitarian society wherein social,
economic and political justice prevail and equality of status and
opportunity are made available to all. However, Shri
Prabhakaran, learned Senior counsel still insisted that writ
petitions be dismissed as having become infructuous because E
of the subsequent developments as referred to hereinabove.

      9. Shri G.E. Vahanvati, learned Attorney General of India
and Shri Mohan Parasaran, learned Solicitor General of India,
have contended that judicial review on assessing the suitability F
is not provided for as it is restricted only to the eligibility. As
there is no challenge to the fact that there had been a proper
consultation by the Hon'ble Chief Justice of Madras High Court
alongwith his other Judges members of the collegium, such
judicial review is uncalled for. The writ petition is not G
maintainable and the High Court has committed an error not
only in entertaining the writ petition but also granting the interim
relief. The writ petitioner has neither applied for issuance of Writ
of Quo Warranto nor Writ of Certiorari, nor could there be any
question of filing any writ petition as only the recommendations H
    88       SUPREME COURT REPORTS                 [2014] 4 S.C.R.


A   for consideration of certain names have been made. The
    allegation that none of the recommendees has any work in court,
    was not correct as the incomes shown by some of them have
    been quite substantial indicating roaring practice. The
    perpetuation of casteism continues social tyranny of ages. The
B   chart filed by the writ petitioner of those recommendees also
    made it clear that they represented all the social backgrounds
    equitably since upper caste, minority and other social
    affiliations have been duly represented. No advocate has a
    right to be considered for being appointed as a judge. More
c   so, there can be no reservation for a community in selection of
    a judge. Even in service jurisprudence, reservation cannot be
    claimed at the cost of compromise to efficiency of
    administration. Therefore, the petition is liable to be dismissed.

          10. Shri L.N. Rao, learned Additional Solicitor General
D   appearing for the Supreme Court, has submitted that the
    Supreme Court collegium vide Resolution dated 13.2.2014 has
    returned the whole list of advocates as well as of the judicial
    officers, with intimation to the Hon'ble Chief Minister and the
    Governor of State of Tamil Nadu with an observation that the
E   new Chief Justice of Madras High Court as and when
    appointed, would re-look into the matter and send
    recommendations in consultation with two senior most
    colleagues after taking into consideration all the relevant facts.
    Thus, in view of the subsequent developments nothing survives
F   to be decided.

         11. The learned Attorney General tried to persuade us to
    decide the other relevant issues also. However, in view of the
    aforesaid view that judicial review does not lie on assessment
G   of suitability of a recommendee, we are not inclined to deal with
    it. But it is needless to emphasise that the question of an
    effective representation on the Bench and the qualitative
    assessment of elevations are not only to be governed by the
    magriitude of the practice of a lawyer or only his social or legal
H   background. These are factors to be considered alongwith the
 REGISTRAR GENERAL, HIGH COURT OF MADRAS                      89
   v. R. GANDHI & ORS. [DR. B.S. CHAUHAN, J.]
other qualities of intellect and character including integrity,     A
patience, temper and resilience. The wisdom and legal learning
of a particular individual coming from a particular social
background may have leanings and individual judges are not
un-afflicted by their notions of social, economic and political
philosophy, but such matters fall within the realm of suitability   B
to be considered by the collegium making recommendations
or accepting the same for appointment as a Judge. The issue
of a broad representation has also to be looked into from the
point of view that it is necessary to ensure that a more
representative Bench does not become a less able Bench.             c
     12. Appointments cannot be exclusively made from any
isolated group nor should it be pre-dominated by representing
a narrow group. Diversity therefore in judicial appointments to
pick up the best legally trained minds coupled with a qualitative D
personality, are the guiding factors that deserve to be observed
uninfluenced by mere considerations of individual opinions. It
is for this reason that collective consultative process as
enunciated in the aforesaid decisions has been held to be an
inbuilt mechanism against any arbitrariness.
                                                                    E
     13. The proceedings before the Division Bench of the
Madras High Court that passed the interim orders were noticed
by us while vacating the same, and the conduct of a sitting
Judge raised a negative murmur about the maintenance of
propriety in judicial proceedings. The sudden unfamiliar incident F
made us fume inwardly on this raw unconventional protest that
was unexpected, uncharitable and ungenerous, and to say the
least it was indecorous. In ordinary life such incidents are not
reviewed with benevolence or generosity, but here we are
concerned with a larger constitutional issue of the justiciability G
of the cause. We have already indicated that the cause and its
contents were beyond the pale of scrutiny in the light of the
decisions of this Court noted by us and therefore it is not
necessary to respond to the above-mentioned unusual
circumstances.
                                                                   H
    90       SUPREME COURT REPORTS                [2014] 4 S.C.R.


A      14. Additionally, we find that the learned Judge was not
  made a party to the proceedings by the Division Bench of the
  High Court before it nor have we accepted the oral prayer to
  that effect. The exceptional personal conduct of the learned
  Judge does not require any judicial response for investigating
B the unusual circumstances and scrutinising the same as it is
  not necessary to decide the issue at hand which can be
                              .
  otherwise disposed off in the manner as indicated herein. The
  learned Judge may have found himself caught in a conflict of
  class or caste structure and it appears that matured patience
c might have given way to injure rules of protocol, but that is not
  the issue that has to be answered by us. Such aspects may
  require a more serious judicial assessment if required in future
  and therefore this question is left entirely open.

        15. It is said that immense dignity is expected, and
D weaknesses or personal notions should not be exposed so as
  to affect judicial proceedings. Judges cannot be governed, nor
  their decisions should be affected, only by the obvious, as
  proceedings in a court are conducted by taking judicial notice
  of such facts that may be necessary to decide an issue. It is
E for this reason, that the paramount principle of impartiality that
  is to be available in the character of a Judge has been humbly
  expounded by none other than Justice Felix Frankfurter in the
  following words:

F        "A good Judge needs to have three qualities, each of
         which is disinterestedness." (of Law and Life and other
         things that Matter edited by Philip 8. Kurland, 1965 Pg.75)

               With the above observations and dignified
         reluctance touching disapproval, we leave this matter for
G        any future milestone to be covered appropriately.

      16. Three applications have been filed for impleadment,
  however, this Court allowed those applicants only to intervene
  and make their submissions on legal issues without impleading
H any of them.
REGISTRAR GENERAL, HIGH COURT OF MADRAS                      91
  v. R. GANDHI & ORS. [DR. B.S. CHAUHAN, J.]
     In view thereof, Shri P.H. Parekh, learned senior counsel A
and President of Supreme Court Bar Association duly assisted
by Ms. Aishwarya Bhati, Ms. Mahalakshmi Pavani and Shri
Chander Prakash, learned counsel, have also advanced their
arguments, on various issues, inter-alia, maintainability of the
writ petitions.                                                  B

     17. Be that as it may, facts and circumstances of these
cases warrant examination of the issue of maintainability at the
threshold.

         In Mahesh Chandra Gupta (supra), this Court C
    observed:

          "39. At this stage, we may state that, there is a
    basic difference between "eligibility" and "suitability". The
    process of judging the fitness of a person to be appointed D
    as a High Court Judge falls in the realm, of suitability.
    Similarly, the process of consultation falls in the realm
    of suitability ...... .

          41. The appointment of a Judge is an executive
    function of the President. Article 217(1) prescribes the       E
    constitutional requirement of "consultation". Fitness of a
    person to be appointed a Judge of the High Court is
    evaluated in the consultation process ... :

           43. One more aspect needs to be highlighted. F
    "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 to wf]o should
    be elevated, which essentially involves the aspect of G
    "suitability", stands excluded from the purview of judicial
    review.

          44. 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 oart of the H
    92        SUPREME COURT REPORTS                  [2014] 4 S.C.R.


A        procedure to 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 Jack of effective
         consultation could fall within the scope of judicial review.
B        This is the basic ratio of the judgment of the
         Constitutional Bench of this Court in Supreme Court
         Advocates-on-Record Assn. v. Union of India, (1993) 4
         SCC 441 and Special Reference No. 1 of 1998, Re
         (199BJ 7 sec 739..
c                In the present 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 Jack of "eligibility"
D         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 are matters of opinion.
E
                73. The concept of plurality of Judges in the
         formation of the opinion of the Chief Justice of India is
         one of inbuilt checks against the likelihood of
         arbitrariness or bias. At this stage, we reiterate that "lack
F        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 consultative process, the primary aim of
         wfi'ich is to reach an agreed decision, one cannot term
         the Bupreme Court Collegium as superior to High Court
G
         Col/egium. The Supreme Court Collegium does not sit
         in 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
H
 REGISTRAR GENERAL, HIGH COURT OF MADRAS                     93
   v. R. GANDHI & ORS. [DR. B.S. CHAUHAN, J.]
    of the Chief Justice of India formed collectively. The         A
    discharge of the assigned role by each functionary helps
    to transcend the concept of primacy between them.

    74 ..... These are the norms, apart from modalities, laid
    down in Supreme Court Advocates-on-Record Assn.                B
    (supra) and also in the judgment in Special Reference
    No. 1 of 1998, Re. 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.
                                                                   c
                                            (Emphasis added)

(See also: C. Ravichandran lyerv. Justice AM. Bhattacharjee
& ors., (1995) 5 sec  457).
                                                                   D
     18. In Supreme Court Advocates-on-Record Assn.
(supra), this Court observed:

    "450 ..... The indication is, that in the choice of a
    candidate suitable for appointment; the opinion of the
    Chief Justice of India should have the greatest weight; the    E
    selection should be made as a result of a participatory
    consultative process in which the executive should have
    power to act as a mere check on the exercise of power
    by the Chief Justice of India, to achieve the constitutional
    purpose......                                                  F
    467 .... The opinion of the judiciary 'symbolised by the
    view of the Chief Justice of India', Is to be obtained by
    consultation with the Chief Justice of India; and it is this
    opinion which has primacy.
                                                                   G
    468. The rule of law envisages the area of discretion to
    be the minimum, requiring only the application of known
    principles or guidelines to ensure non-arbitrariness, but
    to that limited extent, discretion is a pragmatic need.
    Conferring discretion upon high functionaries and,             H
    94        SUPREME COURT REPORTS                  (2014] 4 S.C.R.


A        whenever feasible, introducing the element of plurality by
         requiring a collective decision, are further checks against
         arbitrariness.

         482 ...... lt is, therefore, necessary to spell out clearly the
         limited scope of judicial review ih such matters, to avoid
B
         similar situations in future. Except on the ground of want
         of consultation with the named constitutional
         functionaries or lack of any condition of eligibility in the
         case of an appointment, or of a transfer being made
         without the recommendation of the Chief Justice of India,
c        these matters are not justiciable on any other ground,
         including that of bias, which in any case is excluded by
         the element of plurality in the process of decision-
         making.

D        SUMMARY OF THE CONCLUSIONS

         486. A brief general summary of the conclusions stated
         earlier in detail is given for convenience, as under:


E


         (3) In the event of conflicting opinions by the constitutional
         functionaries, the opinion of the judiciary 'symbolised by
         the view of the Chief Justice of India', and formed in the
F
         maf}ner indicated, has primacy.

         (4) No appointment of any Judge to the Supreme Court
         or any High Court can be made, unless it is in conformity
         with the opinion of the Chief Justice of India." (emphasis
G        supplied)

        19. In Special Reference No. 1 of 1998 (supra), this
    Court held:

         "32. Judicial review in the case of an appointment or a
H
 REGISTRAR GENERAL, HIGH COURT OF MADRAS                        95
   v. R. GANDHI & ORS. [DR. B.S. CHAUHAN, J.]
     recommended appointment, to the Supreme Court or a               A
     High Court is, therefore, available if the recommendation
     concerned is not a decision of the Chief Justice of India
     and his seniormost colleagues, which is constitutionally
     requisite. They number four in the case of a
     recommendation for appointment to the Supreme Court              B
     and two in the case of a recommendation for appointment
     to a High Court. Judicial review is also available if, in
     making the decision, the views of the seniormost
     Supreme Court Judge who comes from the High Court
     of the proposed appointee to the Supreme Court have              c
     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            D
     not been sought or considered by the Chief Justice of
     India and his two seniormost puisne Judges, judicial
     review is available. Judicial review is also available when
     the appointee is found to lack eligibility."

                                            (emphasis supplied)       E

     20. Thus, it is apparent that judicial review is permissible
only on assessment of eligibility and not on suitability. It is not
a case where the writ petitioners could not wait till the maturity
of the cause i.e. decision of the collegium of this Court. They       F
took a premature step by filing writ petitions seeking a direction
to Union of India to return the list sent by the collegium of the
Madras High Court without further waiting its consideration by
the Supreme Court collegium. Even after the President of India
accepts the recommendations and warrants of appointment are           G
issued, the Court is competent to quash the warrant as has
been done in this case of Shri Kumar Padma Prasad v. Union
of India & Ors., AIR 1992 SC 1213 wherein the recommendee
was found not possessing eligibility for the elevation to the High
Court as per Article 217(2). This case goes to show that that         H
    96        SUPREME COURT REPORTS                  [2014] 4 S.C.R.


A   even when the President, has appointed a person to a
    constitutional office, the qualification of that person to hold that
    office can be examined in quo warranto proceedings and the
    appointment can be quashed. (See also: B.R. Kapur v. State
    of Tamil Nadu & Anr., AIR 2001 SC 3435).
B
       21. In such a fact-situation, the writ petitioners or the
  members of the Bar could approach Hon'ble the Chief Justice
  of India; or the Hon'ble Law Minister, but instead of resorting
  to such a procedure, the writ petitioners had adopted an
  unwarranted short cut knowing it fully well that on the ground of
C the suitability, the writ petitions were not maintainable.

         We appreciate the fair stand taken by Shri Prabhakaran,
    learned senior counsel before this Court that suitability cannot
    be a subject matter of judicial review.
D
        22. In view of the above, the transferred cases stand
    disposed of. The Writ Petition Nos. 375, 1082 and 1119 of
    2014 and all matters relating to this case instituted before the
    Madras High Court are disposed of accordingly.

E D.G.                                            SLPs Disposed of.