LexMAHESH CHANDRA GUPTA versus UNION OF INDIA & ORS.
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(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 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. 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 respond
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