2008 (12) TMI 448 - SC - Indian Laws

Court upholds appointment of permanent Judge at Madras High Court, emphasizes limited judicial review

SHANTI BHUSHAN Versus UNION OF INDIA

SHANTI BHUSHAN Versus UNION OF INDIA - 2009 (234) E.L.T. 9 (SC), 2009 (1) SCC 657, 2008 AIR 895 Issues Involved:1. Legality of the appointment of respondent No. 2 as a permanent Judge of the Madras High Court.2. Compliance with the norms and procedures for judicial appointments as laid down by the Supreme Court.3. Scope of judicial review in the context of judicial appointments.4. Extension of tenure of an Additional Judge and the criteria for such extensions.5. Role and opinion of the Chief Justice of India and the collegium in judicial appointments.Issue-wise Detailed Analysis:1. Legality of the Appointment of Respondent No. 2 as a Permanent Judge:The petitioners challenged the appointment of respondent No. 2 as a permanent Judge, arguing that the required norms were not followed. They contended that the opinion of the Chief Justice of India (CJI) should be formed collectively after consulting his senior colleagues and that no appointment should be made unless it conforms to the final opinion of the CJI formed in this manner. The Court referenced the judgments in Supreme Court Advocates-on-Record Association v. Union of India and Special Reference No. 1 of 1998, which emphasize the primacy of the CJI's opinion formed through a consultative process involving senior judges.2. Compliance with Norms and Procedures for Judicial Appointments:The petitioners argued that the appointment violated the law as declared by the Supreme Court and the memorandum issued by the Minister of Law, Justice, and Company Affairs. The memorandum outlines the procedure for appointing and transferring High Court judges, requiring the CJI to consult two senior-most judges and other Supreme Court judges familiar with the concerned High Court. The Court noted that the procedure for appointing a permanent Judge from an Additional Judge does not require the same level of consultation as initial appointments. The Chief Justice of the High Court must provide statistics and other relevant information, but extensive consultation with the collegium is not mandated.3. Scope of Judicial Review in Judicial Appointments:The Court emphasized that the scope of judicial review in such matters is extremely limited. Judicial review is available if the recommendation is not a decision of the CJI and his senior-most colleagues, or if the views of the relevant judges were not considered. The Court cited the Supreme Court Advocates-on-Record case, which outlines the limited grounds for judicial review, including lack of consultation with named constitutional functionaries or lack of eligibility.4. Extension of Tenure of an Additional Judge:The petitioners questioned the extensions granted to respondent No. 2 as an Additional Judge. They argued that if a judge is found unsuitable for permanent appointment, they should not be given extensions. The Court noted that an Additional Judge is not on probation for a permanent position, and the process for appointing a permanent Judge involves a different level of scrutiny. The Court acknowledged that while there is no automatic right to be appointed as a permanent Judge, the suitability for such an appointment must be assessed based on fitness and suitability (physical, intellectual, and moral).5. Role and Opinion of the Chief Justice of India and the Collegium:The Court discussed the role of the CJI and the collegium in judicial appointments. It noted that while the CJI's opinion has primacy, it must be formed through a consultative process. However, the Court found that the practice followed since 1999, where the collegium was not consulted for converting Additional Judges to permanent Judges, was consistent with the memorandum and previous judgments. The Court highlighted that successive Chief Justices had followed this practice, indicating its acceptance.Conclusion:The Court concluded that the appointment of respondent No. 2 as a permanent Judge did not violate the established norms and procedures. It emphasized that the scope of judicial review in such matters is limited and that the practice followed for appointing permanent Judges from Additional Judges without extensive collegium consultation was consistent with the memorandum and previous judgments. The Court also noted that a judge found unsuitable for permanent appointment should not be given extensions as an Additional Judge unless there are specific circumstances justifying it. The writ petition was disposed of accordingly.