# 10 S.C.R. 921 MAHESH CHANDRA GUPTA v. UNION OF INDIA & ORS

- **Citation:** [2009] 10 S.C.R. 921
- **Court:** Supreme Court of India
- **Decided:** 2009-07-06
- **Case number:** Transferred Case No. 0 6 of 2009
- **Bench:** S.H. Kapadia, Aftab Alam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/10-s-c-r-921-mahesh-chandra-gupta-v-union-of-india-ors-24996
- **Pages:** 57

## Headnote

CONSTITUTION OF /NOIA, 1950:
A
B
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
c prescribes eligibility criteria based on "right to practice" and
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,
D
1879 - Indian Bar Councils Act, 1926 - Government of India
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 IT AT, 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 decisionH 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.
Words and Phrases:
B
Expression 'advocate of a High Court' occurring in Article
.....
217(2)(b) of Constitution of India - Connotation of.
Expressions "actual practice" and "rig

## Text

_Characters 0–39,640 of 113,515. This is a partial read: ask again with offset=39640 for what follows._

(2009] 10 S.C.R. 921
MAHESH CHANDRA GUPTA
v.
UNION OF INDIA & ORS.
(Transferred Case (C) No. 6 of 2009) •
JULY 6, 2009
[S.H. KAPADIA AND AFTAB ALAM, JJ.]
CONSTITUTION OF /NOIA, 1950:
A
B
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
c prescribes eligibility criteria based on "right to practice" and
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,
D
1879 - Indian Bar Councils Act, 1926 - Government of India
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 IT AT, 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 decisionH 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.
Words and Phrases:
B
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
G
was: whether "actual practice" as against "right to
..
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] (948C-E]
D
Constitutional Law of India by H.M. Seervai, Fourth
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
G spheres. Article 217(1) answers the question as to who
"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
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
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
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
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] [951H; 952-A-B; 952-C-D]
*Re. Lily Isabel Thomas, AIR 1964 SC 855, referred to.
Halsbury's Laws of England, Fourth Edition, Reissue,
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
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
A
B
c
D
E
F
G
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,
0 Article 217(2)(b). The legal implication of the 1961 Act is
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] [962E 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 subclause (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; 971A-BJ
3.3. It is important to note that each constitutional
functionary involved in the participatory consultative
B
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 c
into the constitutional scheme is to limit 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 Cowt Advocates-on-Record
D
Association* and also in the judgment in Re. Special
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
G
computability of the period during which respondent no.
~
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
B before the Collegiums. On a meticulous scrutiny of the
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
c Member of ITAT during his nascent years in office was
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
D
judicial review. Whether respondent no. 3 was "suitable"
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 decisionmaking process which needs to be insulated from
G
opinionated views based on misinformation. "Trust" in
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
!
CIVIL ORIGINAL JURISDICTION : Transferred Case No.
0
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
F
Respondents.
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
G
said report would not form part of the official record of this
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,
8
posted for today.
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
E
even to the Court, that too by an institution like the High
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
H
be necessary for the High Court to produce the
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,
l.
learned counsel submitted that Explanation (aa) though termed
G
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.
alternative, without admitting that respondent no. 3 had the
'tr
A
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
E
on the performance of respondent no. 3 as a Member of a
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
F
respondent no. 3 during the period he held the office of the
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
E'
inserted), para 9 of the judgment in Prof C.P. Agarwa/'s case
(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
F
Court and not merely enrolment as an advocate. Learned
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,
D respondent no. 3 got himself appointed as a Judge of
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
F
withholding of information would certainly fall in the category of
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.]
No. 1of1998 reported in (1998) 7 SCC 739. According to the
A
;l
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
D
,
of a High Court" was placed in the Constitution at a time when
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
0 the past, according to the learned counsel, special significance
1
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.