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| DATE: | July 8, 2009 (Date of publication) |
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| Click here to download the judgement (satish_chandra_appt_high_court_judge.pdf) |
Practice as advocate is not required for appt as High Court judge
Shri. Satish Chandra, former ITAT Member, was appointed judge of the Allahabad High Court on 6.8.2008. The appointment was challenged on the ground that he had not practiced for even a day as an advocate and that he was not eligible for appointment under Article 217(2) and Article 217(1) of the Constitution. It was also alleged that the mandatory process of consultation under the Constitution had not been followed. It was also alleged that the appointment had been obtained by giving misleading facts about his practice as an advocate amounting to perpetrating fraud. HELD, dismissing the Petition:
(i) Under Article 217(2) (b) “right to practice” is the prerequisite constitutional requirement of the eligibility criteria and not “actual practice”. 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 is governed by Article 217(1). “Eligibility” is an objective factor and falls within the scope of judicial review. However, the question as to who should be elevated, which essentially involves the aspect of “suitability” and evaluation of the worth and merit of a person, stands excluded from the purview of judicial review.
(ii) On facts, as the appointee had enrolled as an Advocate of the High Court on 13.9.1975 and had worked as a Member of ITAT between 3.12.1997 and 6.8.2008 (11 years) and prior thereto had worked as Additional Law Officer (Director), Law Commission of India, he stood qualified for appointment as a Judge of the Allahabad High Court.
(iii) On the aspect of consultation, 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.
(iv) On facts, the bio-data of the appointee was placed before the Collegiums. Information regarding the lack of actual practice as an Advocate of the High Court and the working of the appointee as a Member of ITAT during his nascent years in office was before the Supreme Court Collegium. Further, that information was meticulously vetted and the recommendation of the High Court Collegium for appointment was sent back by the Supreme Court Collegium to the High Court Collegium for reconsideration. The matter was re-examined by the High Court Collegium. That Collegium reiterated its position and it recommended once again the name of the appointee for appointment as a High Court Judge. Accordingly, there was effective consultation. The content of the consultation process was not amenable to judicial review.
(v) The question whether the appointee was “suitable” to be appointed a High Court judge or whether he satisfied the fitness test was beyond justiciability in the present proceedings.
(vi) “Continuity of an Institution” is an important Constitutional principle in the Institutional decision-making process which needs to be insulated from 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 Court which is the function of an integrated participatory consultative process. The allegations made by the Petitioner against institutional decision making process were baseless.
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