R KARUPPAN Vs. MR CHIEF JUSTICE AGGARWAL CHAIRMAN OF THE CENTRAL ADMINISTRATIVE TRIBUNAL HIGH COURT CAMPUS NEW DELHI

JUDGEMENT

(1.) WE have heard the petitioner-party-in-person, who addressed us at great length. He has taken us through the petition filed by him and he has also made additional submissions. He also invited our attention to the three leading judgments of the Supreme Court concerning the appointment of Judges to the Superior Courts in the country. It was submitted by the party-in-person that the matter is one of great embarrassment and delicacy even to him, but that he felt compelled to come to the Court with this petition, as he felt that the Bar has a prominent role to play in the matter of selection and appointment of Judges and in his views that role had not been duly recognised in the selection process which is said to be currently on going. The petitioner rightly does not and cannot claim to be the spokesman for the Bar.

(2.) A reference was made to the decision of the Supreme Court in the case of S.P. Gupta and others v. President of India and others (AIR 1982 S.C. 149) rendered by a Bench of seven Honourable Judges of the Court, wherein, it was observed that there can be no doubt that the practising lawyers have a vital interest in the independence of the judiciary and if any unconstitutional or illegal action is taken by the State or any public authority which has the effect of imparing the independence of judiciary, they would certainly be interested in challenging the constitutionality or legality of such action. What was pointed out by the Apex Court by that observation was that the bar has a vital role to play in ensuring the independence of the judiciary and in preventing the imparing of that independence. The question before us is not about the independence of the Judiciary. It is the very high functionaries of the judiciary who are involved in the process of selection and appointment, and there is no question of such high functionaries not acting judicially as has been held by the Supreme Court in the subsequent nine Judge decision in the case of S.C. Advocate-on-Record Assn. v. Union of India (AIR 1994 S.C. 268) which has been reaffirmed with further clarifications by another nine Judge Bench of the Apex Court, in the case of In Re: Presidential Reference (AIR 1999 S.C. 1.).

(3.) THE Supreme Court has held that the reference to the Chief Justice of India is not to the individual, but to the Chief Justice symbolising the considered view of the institution and that the weight to be attached to that view of the Chief Justice of India being the view of the institution which he heads, is entitled to primacy. THE recommendations made by the Chief Justice of India after due consultation with his colleagues, and the Chief Justice of the High Court, is to have primacy in the matter of the final selection and appointment of the Judges of the High Court. We have already extracted the relevant conclusion of the seven fudge Bench in the case of S.P. Gupta (AIR 1982 S.C. 149), (supra) which limited the scope of judicial review in the appointment and transfer of Judges. That was reiterated by the later nine Judge Bench of the Apex Court in the In re: Presidential Reference . (AIR 1999 S.C. 1)Supra paragraphs 28 and 29 of the judgment being relevant and instructive for the purpose of this case, the same are extracted and set out below. ?28. In the context of the judicial review of appointments, the majority judgment in the second Judges case said, ?Plurality of Judges in the formation of the opinion of the Chief Justice of India, as indicated, is another in-built check against the likelihood of arbitrariness or bias, ..THE judicial element being predominant in the case of appointments . as indicated, the need for further judicial review, as in other executive actions, is eliminated?.