G KUMARASAMY Vs. UNION OF INDIA

JUDGEMENT

(1.) HEARD the learned counsel for the petitioner. The petitioner in this writ petition has sought for a writ of mandamus forbearing the first respondent from issuing a warrant of appointment appointing the 4th respondent as a Judge of the High Court of Judicature at Madras and to pass such further order or other orders as this Court may deem fit and proper in the circumstances of the case.

(2.) THE petitioner states that he has presented this writ petition in his own capacity as a person aggrieved by the various acts of the 4th respondent and also in the capacity of a responsible citizen of India, former Secretary of Tamil Nadu Congress Party I and former Editor and Publisher of a Tamil Daily etc. in the public interest as a public interest litigation.

(3.) IN paragraph 225 of the said judgment, it is further stated that in the matters relating to the appointment of Judge to the High court, it would be better if the Chief Justice of the High Court concerned forms his opinion on consultative process by ascertaining the views of atleast two of the senior-most Judges of the High Court and such other Judges whose opinion is likely to be significant in the formation of the opinion. The Chief justice of INdia, while forming his opinion on the recommendation made by the chief Justice of the High Court concerned for appointment of a Judge to the high Court, may take into account the views of his colleagues in the Supreme court who are likely to be conversant with the affairs of the concerned High court. The Supreme Court, in the said judgment, proceeded to lay done the norms as can be seen from paragraph 501 of the said judgment. The norms that are relevant for the present purpose read thus: "in matters relating to appointments in the High courts, the Chief Justice of INdia is expected to take into account the view of his colleagues in the Supreme Court who are likely to be conversant with the affairs of the concerned High Court. The Chief Justice of INdia may also ascertain the views of one or more senior Judges of that High Court whose opinion, according to the Chief Justice of INdia, is likely to be significant in the formation of his opinion. The opinion of the Chief Justice of the High court would be entitled to the greatest weight, and the opinion of the other functionaries involved must be given due weight, in the formation of the opinion of the Chief Justice of INdia. The opinion of the Chief Justice of the high Court must be formed after ascertaining the views of atleast the two senior most Judges of the High Court. The Chief Justice of INdia, for the formation of his opinion, has to adopt a course which would enable him to discharge his duty objectively to select the best available persons as Judges of the Supreme Court and the High Courts. The ascertainment of the opinion of the other Judges by the Chief Justice of INdia and the Chief Justice of the High Court, and the expression of their opinion, must be in writing to avoid any ambiguity. " xxx xxx xxx xxx xxx xxx xxx xxx 9. IN order to ensure effective consultation between all the constitutional functionaries involved in the process, the reasons for disagreement, if any, must be disclosed to all others, to enable reconsideration on that basis. All consultations with everyone involved, including all the Judges consulted, must be in writing and the Chief Justice of the High Court, in the case of appointment to a High Court, and the Chief Justice of INdia, in all cases, must transmit with his opinion the opinions of all judges consulted by him, as a part of the record. Expression of opinion in writing is an inbuilt check on exercise of the power, and ensures due circumspection. Exclusion of justiciability, as indicated hereafter, in this sphere should prevent any inhibition against the expression of a free and frank opinion. The final opinion of the Chief justice of INdia, given after such effective consultation between the constitutional functionaries has primacy in the manner indicated. "