REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

TRANSFERRED CASE (C) NO. 6 OF 2009

Mahesh Chandra Gupta … Petitioner

         versus

Union of India & Ors. … Respondents

J U D G M E N T

S.H. KAPADIA, J.

The President of India by a Warrant dated 6.8.2008 under her hand  

and  seal  appointed  Dr.  Satish  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  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?

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Background Facts:

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 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 a Judge of Allahabad High Court. According to the original 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  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.

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

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by the High Court Collegium in regard to appointment of Respondent no. 3  

as 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  thereto.  The  letter  of  recommendation  of  the  High  

Court 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.

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  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 the collegium indicated that the recommendation on  the  persons  proposed  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.  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  collegium.   However  that

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report  did  not  appear  to  have  been  sent  to  the  other  Constitutional  functionaries  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  said report would not form part of the official record of  this 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. 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, 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  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 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 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.

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Therefore,  having regard to the need to maintain  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.

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  be  necessary  for  the  High  Court  to  produce  the  Committee’s report unless those objections are heard and  disposed of.

Put up on 25th September 2008.” (emphasis supplied)

6. It is at that stage that Allahabad High Court (Respondent no. 2 in the  

original writ petition) came to this Court by way of Transfer 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 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  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

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Tribunal for more than ten years, but has not practiced as an Advocate even  

for 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 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, learned counsel submitted that Explanation  

(aa) though termed 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 alternative, without admitting that respondent no. 3 had  

the 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, 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

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with the aid of Explanation (aa) to Article 217(2)(b) of the Constitution. In  

this  connection,  learned counsel  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 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  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 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 217(2)(b), which  

was the basic eligibility criteria. Learned counsel next urged that for being

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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  expression  “an  advocate”  in  

Article 233(2) in contradistinction to the expression “an advocate of a High  

Court”  in  Article  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  simply “an advocate”.  In this  connection,  reliance was  

placed on the judgment of this Court in the case of Prof. C.P. Agarwal  v.  

C.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. Agarwal’s case  

(supra)  this  Court  observed  that  the  distinction  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  two  classes  of  Advocates,  i.e.,  Advocates  and  

Senior Advocates entitled to practice. According to the learned counsel, the  

ratio of the judgment of this Court in Prof. C.P. Agarwal’s case (supra) is  

per incuriam. In the alternative, learned counsel urged that, in any case, after

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the Forty-fourth Constitutional Amendment (by which Explanation (a) stood  

inserted),  para  9  of  the  judgment  in  Prof.  C.P.  Agarwal’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 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 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 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 been alleged that respondent no. 3 did not  

practice law after 1977. According to the learned counsel, respondent no. 3

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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,  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,  

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  

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 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

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adverse comments about 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.  In  this  connection,  

learned counsel placed reliance on paragraphs 29 and 32 of the judgment of  

this Court in  Re.  Special Reference No. 1 of 1998 reported in (1998) 7  

SCC  739.  According  to  the  learned  counsel,  initiation  comes  by  

recommendation  of  the  Chief  Justice  of  the  High  Court  on  which  the  

Supreme Court Collegium places reliance and, therefore, it was expected of  

the Chief Justice of the High Court not to withhold the relevant information  

from the Collegium of the Supreme Court, which 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.  

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 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

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(“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 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 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  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 court in India  

unlike the earlier law where he could practice as of right only in that High  

Court in which he was enrolled as an Advocate. Therefore, according to the  

learned  counsel,  with  the  advent  of  the  1961  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

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to any 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 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 the past, according to the learned counsel, special  

significance  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 (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 of this Court in  Prof. C.P. Agarwal’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

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practicing as an advocate of the High Court. Learned counsel next urged that  

clause (aa) was inserted in 1978 to 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 counsel,  clause  (aa)  

requires such period to be added to the years during which a person was  

entitled to practice at the Bar in order to determine whether threshold limit  

of ten years stood crossed. According to the learned counsel, if insistence  

upon  ten  years  of  actual  practice  was  a  constitutional  requirement  then  

clause (aa) would be rendered nugatory because clause (aa) assumes that a  

person who otherwise does not satisfy the requirement of ten years of actual  

practice  can  still  fall  under  Article  217(2)(b)  if  a  person  had  a  right  to  

practice for a short period of time followed by his becoming a member of a  

Tribunal for ten years. According to the learned counsel, clause (aa) negates  

the suggestion that actual practice is the constitutional requirement of Article  

271(2)(b).  Learned  counsel  next  submitted  that  there  is  a  conceptual  

difference  between  “eligibility”  and  “desirability”  for  elevation.  In  this  

connection,  it  was  submitted  that  a  person  who  has  been  an  advocate  

enrolled for ten years, who has been an enrolled advocate and who has held

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office as a member of a Tribunal, the total of which exceeds ten years, is  

eligible  for elevation.  However,  the converse is  not  true,  namely,  not  all  

persons, who have been advocates for ten years or have held office of the  

Tribunal after being enrolled for a period of ten years are worthy of being  

elevated. It is only when a collegium is satisfied that a person is worthy of  

being  elevated,  that  it  recommends  appointment  to  the  High  Court.  The  

evaluation  of  the  worth  and  the  merit  of  a  person  as  a  member  of  the  

Tribunal  is  done  by  considering  his  judgments  and  orders  and  such  

evaluation by the collegium has no bearing on the eligibility of a candidate  

for  elevation.  Learned  counsel  next  urged  that,  there  is  no  merit  in  the  

contention  advanced  on  behalf  of  the  Original  Petitioner  that  since  

respondent  no.  3  was  shown  as  a  service  judge,  he  should  have  been  

considered under Article 217(2)(a).  According to the learned counsel, for  

the High Court, the Constitution does not create any such quota. It merely  

prescribes the eligibility criteria. It is purely by convention that, in order to  

have a  healthy mix  of  those from the Bar  and those  who have had past  

experience of working as judicial  officers/officers  in the Tribunals  that  a  

policy decision stood adopted in the Chief Justices’  Conference of 2002,  

which extended the ambit of appointment to take within its sweep members  

from Income Tax Appellate Tribunal (“ITAT” for short). This was a pure

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policy  decision taken  in  the  said  Conference.  For  that  purpose,  it  was  

decided that when members of ITAT are elevated, they may be counted from  

“service quota”. Therefore, according to the learned counsel, it is obvious  

that for eligibility purpose, one has to read clause (aa) of the Explanation  

with Article 217(2)(b) in cases of elevation of members of ITAT. According  

to  the  learned  counsel,  the  said  policy  decision  has  no  relevance  to  the  

question  of  eligibility  of  the  person  elevated.  According  to  the  learned  

counsel, there is no merit in the challenge of the original petitioner based on  

lack  of  effective  consultation.  According  to  the  learned  counsel  in  the  

judgment  of  this  Court  in  Supreme  Court  Advocates-on-Record  

Association and Ors.  v.  Union of India reported in 1993 (4) SCC 441,  

Verma, J., as he then was, speaking for the majority held, that in the matter  

of primacy, the fundamental assumption was a participatory role of each of  

the  functionaries;  that  the  question  of  primacy  is  best  avoided  by  each  

Constitutional functionaries remembering that all of them are participants in  

a joint venture, the aim of which is to find out and select the most suitable  

candidate.  It  was further observed that primacy was a solemn duty to be  

discharged only where it  became strictly necessary. In the said judgment,  

dealing  with  the  question  of  justiciability,  this  Court  explained  that  “the  

reduction of the area of discretion to the minimum, the element of plurality

17

of Judges in formation of the opinion of the Chief Justice of India, effective  

consultation  in  writing,  and  prevailing  norms  to  regulate  the  area  of  

discretion are sufficient checks against arbitrariness.” Relying on the said  

judgment, learned counsel submitted that, in the present case, the safeguard  

was attained by creating a plurality of institutions including the Chief Justice  

of India and the Chief Justice of the High Court and therefore there was no  

occasion for further judicial review as a check or balance on the exercise of  

power.  Learned  counsel  also  placed  reliance  on  the  judgment  of  the  

Constitution Bench of this Court in Re.  Special Reference No. 1 of 1998  

(supra) in which it  was clarified that the moment  a consultation process  

stood  complied  with,  the  content  of  that  process  was  not  amenable  to  

judicial  review  (see  para  32).  It  was  clarified  that  judicial  review  was  

admissible  only if  the views of  a Constitutional  functionary (consultation  

with whom is the Constitutional requisite) is not taken into account. It was  

submitted that the Chief Justice of the High Court is a co-equal functionary  

and  that  ideally  the  appointment  should  be  by  unanimity  among  all  

functionaries. It was submitted that the Chief Justice of the High Court does  

not merely provide information to the Supreme Court collegium to enable  

them  to  recommend  Judges  for  elevation.  Therefore,  according  to  the  

learned  counsel,  all  this  translates  into  recommendation  made  by  the

18

collegium of the High Court and that the collegium of the Supreme Court  

does not sit in appeal over the recommendation of the High Court. In this  

connection,  learned counsel  submitted  that  the  Chief  Justice  of  the  High  

Court may in order to advice himself and the members of his collegium take  

the  assistance  of  other  colleagues  or  information  from  various  sources.  

However, the process of getting material  from the High Court to aid and  

assist  formation of  opinion  by  the  collegium of  the  Supreme Court  is  a  

matter between two Constitutional entities (Collegiums) which does not fall  

within the area of judicial review. It is important to bear in mind, according  

to the learned counsel, that the material like the Report of the Sub-committee  

is supplied not in justification of the recommendation but only to assist the  

Supreme Court Collegium to form an opinion. Therefore, according to the  

learned counsel, the question as to whether there existed any material with  

the High Court and the question whether such a material was made available  

to the Supreme Court is a matter which is incapable of enquiry in proceeding  

for judicial review. According to the learned counsel, the submission made  

on  behalf  of  the  original  petitioner  that  there  was  lack  of  effective  

consultation because the High Court had material which was not furnished  

to  the  Supreme Court  Collegium is  totally  misconceived.  Lastly,  learned  

counsel  urged  that  the  Original  Petitioner  has  made  rank  irresponsible

19

statements in his affidavit dated 15.4.2009 which calls for strictures against  

the petitioners. In the circumstances, according to the learned counsel, the  

transferred writ petition should be dismissed.

Relevant Provisions of the Constitution:

9. Before  analysing  Article  217(1)  and  (2),  we  quote  hereinbelow  

relevant provisions of the Constitution.   

Article 124(3) of the Constitution reads as follows:

“124.  Establishment  and  Constitution  of  Supreme  Court.-

(3) A person shall not be qualified for appointment as  a Judge of the Supreme Court unless he is a citizen  of India and—

(a) has been for at least five years a Judge of a  High Court or of two or more such Courts in  succession; or

(b) has been for at least ten years an advocate of  a High Court or of two or more such Courts  in succession; or

(c) is,  in  the  opinion  of  the  President,  a  distinguished jurist.

Explanation I. – … Explanation  II.-  In  computing for  the  purpose  of  this  clause  the  period  during  which  a  person  has  been  an  advocate,  any  period  during  which  a  person  has  held  judicial office not inferior to that of a district Judge after  he became an advocate shall be included.”                                                              (emphasis supplied)

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Article 217(1) and (2) of the Constitution reads as follows:

“217. Appointment and conditions of the office of a  Judge of a High Court.-

(1)    Every Judge of a High Court shall be appointed by  the President by warrant under his hand and seal  after  consultation with the Chief Justice of India,  the  Governor  of  the  State,  and,  in  the  case  of  appointment  of  a  Judge  other  than  the  Chief  Justice,  the Chief Justice of the High Court,  and  shall  hold office,  in  the  case  of  an additional  or  acting Judge, as provided in article 224, and in any  other  case,  until  he  attains  the  age  of  sixty  two  years :

Provided that—

(a)    a  Judge  may,  by  writing  under  his  hand  addressed to the President, resign his office;

(b)    a Judge may be removed from his office by  the  President  in  the  manner  provided  in  clause (4) of article 124 for the removal of a  Judge of the Supreme Court;

(c)    the office of a Judge shall be vacated by his  being  appointed  by  the  President  to  be  a  Judge of the Supreme Court or by his being  transferred  by  the  President  to  any  other  High Court within the territory of India.

(2) A person shall not be qualified for appointment as  a Judge of a High Court unless he is a citizen of  India and—

(a) has  for  at  least  ten  years  held  a  judicial  office in the territory of India; or

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(b) has for at least ten years been an advocate of  a High Court or of two or more such courts  in succession;  

Explanation.—For the purposes of this clause—

(a) in  computing  the  period  during  which  a  person  has  held  judicial  office  in  the  territory of India, there shall be included any  period, after he has held any judicial office,  during  which  the  person  has  been  an  advocate  of  a  High Court or  has  held  the  office of a member of a tribunal or any post,  under the Union or a State, requiring special  knowledge of law;

(aa) in  computing  the  period  during  which  a  person  has  been  an  advocate  of  a  High  Court,  there  shall  be  included  any  period  during  which  the  person  has  held  judicial  office or the office of a member of a tribunal  or  any  post,  under  the  Union  or  a  State,  requiring special knowledge of law after he  became an advocate.”

Article 224(1) reads as follows:

“224. Appointment of additional and acting Judges-

(1) if by reason of any temporary increase in the business  of a High Court or by reason of arrears of work therein, it  appears to the President that the number of the Judges of  that  Court  should  be for  the  time being  increased,  the  President  may  appoint  duly  qualified  persons  to  be  additional  Judges  of  the  Court  for  such  period  not  exceeding two years as he may specify.”

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Article 233(2) reads as follows:

“233  Appointment of district judges— (1) … (2)    A person not already in the service of the Union or  of  the  State  shall  only  be  eligible  to  be  appointed  a  district judge if he has been for not less than seven years  an  advocate  or  a  pleader  and  is  recommended  by  the  High Court for appointment.”

Section 220(3) of the Government of India Act, 1935 reads as follows:

“220. Constitution of High Court.-

(3) A person shall not be qualified for appointment as  a judge of a High court unless he –

(a) is a barrister of England or Northern Ireland, of at  least ten years standing, or a member of the Faculty of  Advocates in Scotland of at least ten years standing, or

(b)  is a member of the Indian Civil Service of at least  ten  years  standing,  who  was  for  at  least  three  years  served as, or exercised the powers of, a district Judge; or   (c) has for at least five years held a judicial office in  British India not inferior to that of a subordinate judge, or  judge of a small cause court; or

(d) has  for  at  least  ten years  been a  pleader  of  any  High Court, or of two or more such Courts in succession:

        Provided that a person shall not, unless he is, or  when first appointed to Judicial office was, a barrister, a  member  of  the  Faculty  of  Advocates  or  a  pleader,  be  qualified for appointment as Chief Justice of any High  Court constituted by letters patent until he has served for  not less than three years as a Judge of a High Court.

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In computing for the purposes of this sub-section  the standing of a barrister or a member of the Faculty of  Advocates, or the period during which a person has been  a pleader, any period during which the person has held  judicial office after he became a barrister, a member of  the Faculty of Advocates, or a pleader, as the case may  be, shall be included.”

Analysis of Article 217(1) and (2):

10. Whether  “actual  practice”  as  against  “right  to  practice”  is  the  pre-

requisite constitutional requirement of the eligibility criteria under Article  

217(2)(b) is the question which we are required to answer in this case. At  

this stage, we may state that, 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”. Similarly,  

the  process  of  consultation falls  in  the  realm of suitability.  On the other  

hand, eligibility at the threshold stage comes under Article 217(2)(b). This  

dichotomy between suitability and eligibility finds place in Article 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). This  

dichotomy is succinctly brought out in the  Constitutional Law of India by  

H.M. Seervai, Fourth Edition, at page 2729, which is quoted hereinbelow:

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“From Article 217(1) as enacted in 1950 the following  things  are  clear.  First,  Art.  217(1)  provided  for  the  appointment of only permanent High Court Judges.  They  were permanent in the sense that they continued to hold  their office till  they attained the age of 60 years. They  were not “permanent” as opposed to Addl. Judges who  held office for a period not exceeding 2 years, because in  1950 our Constitution did not provide for Addl. Judges.  Secondly, Art. 217(2) prescribed the qualifications which  a person must possess   before   he could be appointed a  High  Court  Judge.  Thirdly  Art.  217(1)  provided  the  procedure to be followed before a person was appointed a  High Court Judge. That procedure was designed  to test  the  fitness of  a  person  to  be  appointed  a  High  Court  Judge: his character, his integrity, and his competence in  various branches of the law, and the like.  In recruiting a  person from the Bar, his experience in different kinds of  litigation would also be taken into account. The thing to  note is that Art. 217 (1) provides for a once for all test of  a  person’s fitness to be a High Court Judge. A person  who has  passed that  test  is  subject  to  no other  test  of  fitness but will continue to hold his office till he attains  the age of retirement which had been fixed at 60 years till  1963. But once appointed, his performance on the Bench  may  be  good,  bad  or  indifferent.  His  judgments  and  orders may be subject to appeal in High Court, and are  certainly subject to appeal to the Supreme Court under  Art. 136 if not under other Articles of Chap. IV of part  VI.”

11. The appointment of a Judge is an executive function of the President.  

Article  217(1) prescribes the constitutional  requirement of “consultation”.  

Fitness of a person to be appointed a Judge of the High Court is evaluated in  

the  consultation  process  (see  Basu’s  Commentary  on  the  Constitution  of   

India, Sixth Edition, p. 234). Once this dichotomy is kept in mind, then, it

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becomes clear that evaluation of the worth and merit of a person is a matter  

entirely different from eligibility of a candidate for elevation. Article 217(2),  

therefore,  prescribes  a  threshold  limit  or  an  entry  point  for  a  person  to  

become qualified to be a High Court Judge whereas Article 217(1) provides  

for a procedure to be 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.  Hence,  Article  217(1)  and  Article  217(2)  operate  in  different  

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”.  Enrolment  of  an  advocate  under  the  1961  Act  comes  in  the  

category of who “could be elevated” 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”.  One  more  aspect  needs  to  be  

highlighted.  “Eligibility” is an objective factor.  Who could be elevated is  

specifically  answered  by  Article  217(2).  When  “eligibility”  is  put  in  

question,  it  could  fall  within  the  scope  of  judicial  review.  However,  the  

question as to who should be elevated, which essentially involves the aspect  

of “suitability”, stands excluded from the purview of judicial review. At this  

stage,  we may  highlight  the  fact  that  there  is  a  vital  difference  between

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judicial review and merit review. Consultation, as stated above, forms part  

of the procedure to test the fitness of a person to be appointed a High Court  

Judge 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. This is the basic  

ratio of the judgment of the Constitutional Bench of this Court in the case of  

Supreme  Court  Advocates-on-Record  Association (supra)  and  Re.  

Special Reference No. 1 of 1998 (supra)  

  12. Lastly, it may also be stated that the present case arises from a writ  

petition filed under Article 226 of the Constitution by way of a writ of quo  

warranto and not a writ of certiorari.  

Significance  of  Explanation (a)  and  Explanation (aa)  inserted  in  Article  217(2)  vide  Forty-fourth  Constitutional  Amendment  :   

  13. One  of  the  questions  which  arises  for  determination  before  us  is:  

whether by insertion of Explanation (aa) appended to Article 217(2)(b), the  

effect of judgment of this Court in Prof. C.P. Agarwal’s case (supra) stands  

nullified?

14. To answer  the  above question,  we need  to  refer  to  Article  124(3)  

(which has been quoted hereinabove). Article 124 deals with establishment

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and Constitution of Supreme Court. Article 124(3) prescribes qualifications  

for  appointment  of  a  person  as  a  Judge  of  the  Supreme  Court.  Article  

124(3)(b) inter alia states that a person shall not be qualified for appointment  

as a Judge of the Supreme Court unless he has been for at least 10 years an  

advocate of a High Court. This sub-clause has to be read with Explanation-II  

which  is  similar  to  Explanation  (aa)  appended  to  Article  217(2)(b).  

Commenting  on  Explanation-II,  H.M.  Seervai  in  Constitutional  Law  of   

India, First Edition, p. 1012, has this to say:

“The  qualification  for  appointment  as  a  judge  of  the  Supreme Court is the holding of a judge’s office for at  least five years in a High Court or in two or more High  Courts in succession; or at least ten years’ standing as an  advocate of a High Court or two or more High Courts in  succession;  or  distinction  achieved  as  a  jurist  [Art.  124(3)]. In computing the period during which a person  has been an advocate,  any period during which he has  held judicial office not inferior to that of a District Judge  after he become an advocate, is to be included [Art. 124  (3)  Expl.  II].  It  is  clear  that  the  explanation  is  not  attracted if a person has been an advocate for ten years  before accepting any judicial   appointment,  for that by  itself  is  a  sufficient  qualification  for  appointment  as  a  judge of the Supreme Court.”            (emphasis supplied)

15. In  our  view,  Explanation  (aa)  appended  to  Article  217(2)  is  so  

appended so 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

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Tribunal  after  he  became an  advocate.  As  stated  by  the  learned  Author,  

quoted  above,  if  a  person  has  been  an  advocate  for  ten  years  before  

becoming a member of the Tribunal, Explanation (aa) would not be attracted  

because being an advocate for ten years  per se would constitute sufficient  

qualification for appointment as a Judge of the High Court.  

16. Before  concluding  on  this  point,  we  may  state  that  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 (see Halsbury’s Laws of   

England, Fourth Edition Reissue, Volume 3(1), paragraphs 351 and 394 of   

the Chapter under the Heading ‘Barristers’.) Under Section 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. As  

stated above, the word ‘standing’ connotes the years in which a person is  

entitled to practice, not the actual years put in by that person in practice. In  

Re. Lily Isabel Thomas reported in AIR 1964 SC 855 this Court equated  

“right to practice” with “entitlement to practice” (see para 11). In our view,  

Article 217(2)(b), therefore, prescribes a qualification for being appointed a  

Judge of the High Court. The concept of “actual practice” will fall under  

Article  217(1)  whereas  the  concept  of  right  to  practice  or  entitlement  to

29

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”.

Meaning  of  the  Expression  “an  Advocate  of  a  High  Court”  in  Article 217(2)(b):  

17. The said expression was placed in the Constitution at a time when the  

practice of advocates was governed by the Indian Bar Councils Act, 1926.  

Section  2(1)(a)  of  that  Act  defined an  “advocate”  to  mean  “an advocate  

entered in the roll of advocates of a High Court under the provisions of the  

Act”.  Section 8 provided that  “no person shall  be entitled  as  of  right  to  

practise  in  any  High  Court,  unless  his  name  is  entered  in  the  roll  of  

advocates of the High Court maintained under the Act.” It is this enrolment  

which gave a right to practice or entitlement to practice.

18. The scope of the said 1926 Act has been succinctly spelt out in the  

judgment of the Allahabad High Court in the case of  Durgeshwar Dayal  

Seth  v.  Secretary, Bar Council reported in AIR 1954 Allahabad 728 (vide  

paragraphs 4 and 5), which judgment stands approved by this Court in the  

case of  O. N. Mohindroo  v.  Bar Council of Delhi and ors. reported in  

AIR 1968 SC 888. Paragraphs 4 and 5 of the judgment in  Durgeshwar’s  

case (supra) read as under:

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“4. The Indian Bar Councils Act, 1926, was enacted by  the Indian Legislature to provide for the constitution and  incorporation of Bar Councils for certain courts. The Act  extends to all the provinces of India. Under Section 1(2),  it  was  made  applicable  to  certain  High  Courts  of  Judicature including that at Allahabad and to such other  High  Courts  within  the  meaning  of  Clause  (24)  of  Section  3  of  the  General  Clauses  Act,  1897,  as  the  Provincial  Government  by  notification  in  the  official  gazette,  declare  to  be  High  Courts  to  which  this  Act  applies. Sections 1, 2, 17, 18 and 19 of the Act came into  force  at  once  and  by  Section  1(3)  the  Provincial  Government was empowered by notification to direct that  the other provisions of the Act would come into force in  respect of any High Court to which the Act applies on  such date as it may by the notification appoint.

The  main  provisions  of  the  Act  are  as  follows:  Under  Section  3  for  every  High  Court  a  Bar  Council  would be constituted which was to be a body corporate,  having perpetual succession. Section 8 lays down that  

"no person shall be entitled as of right to practise in any  High Court, unless his name is entered in the roll of the  Advocates of the High Court maintained under this Act,"

and requires the High Court to prepare and maintain a  roll of Advocates of the High Court. In the roll are to be  entered the names of all persons who were, as Advocates  etc.,  entitled  as  of  right  to  practise  in  the  High  Court  immediately before the date on which Section 8 comes  into force, provided that they paid a fee, payable to the  Bar  Council,  of  Rs.  10/-.  Also  the  names  of  all  other  persons who have been admitted to be Advocates of the  High Court are to be entered in the roll on payment of  such  fee  as  may  be  prescribed.  The  High  Court  is  required to send to the Bar Council  a copy of the roll.  This is also provided in Section 8.

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The  Bar  Council  is  authorised  to  make  rules  to  regulate the admission of persons to be Advocates of the  High Court, vide Section 9. The High Court is given the  power  by  Section  10  to  punish  an  Advocate  for  misconduct; the enquiry into the allegation of misconduct  is to be made by a committee of the Bar Council. Every  person whose name is entered in the roll of Advocates is  entitled as of right to practise in the High Court of which  he is an Advocate, vide Section 14. Power is given by  Section 15 to a Bar Council to make rules in respect of  the rights and duties of the Advocates of the High Court  and their discipline and professional misconduct. When  Ss.  8  to  16  are  applied  to  any  High Court,  the  Legal  Practitioners Act of 1879 stands amended to the extent  and in the manner specified in the schedule of the Act  and if there is anything inconsistent with their provisions  in  the  Letters  Patent,  they  are  deemed  to  have  been  repealed to that extent.

5. On  the  passing  of  the  above  Act,  the  Provincial  Government  issued  a  notification  under  Section  1(3)  applying the rest of the sections of the Act to the High  Courts  then  existing,  the  High  Court  of  Judicature  at  Allahabad  (which  will  be  referred  to  as  the  old  High  Court) and the Chief Court of Avadh and Bar Councils  were  established  for  them.  The  applicant  got  himself  admitted as  an Advocate  on payment  of the fee & his  name was entered on the roll prepared by the old High  Court  of  Allahabad.  Under  Section 14 he acquired the  right to practise in the old High Court.”

19. An  interesting  question  on  interpretation  of  Section  4  of  Legal  

Practitioners Act,  1879 (“1879 Act” for short)  came up for consideration  

before the Patna High Court in Re. Devasaran Lall Sinha reported in AIR  

1946 Patna 369. The qualification for advocates, vakils and attorneys under

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Section  4  required  for  an  advocate  who  desired  to  appear  in  a  Court  

subordinate to a High Court in which he was  not enrolled  that he should  

ordinarily be practicing in the Court in which he is enrolled. In 1941, the  

applicant had appeared for an examination held by the Bombay High Court,  

the passing of which entitled him to be enrolled as an advocate of that Court  

and to practice in that Court and in Courts subordinate to that Court. As a  

matter of fact, the applicant never practiced in the Bombay High Court or in  

the  Courts  subordinate  to  it.  Since  his  enrolment  as  an  advocate  of  the  

Bombay High Court he had practiced only in the District of Gaya in Bihar.  

This matter was brought to the notice of the High Court by the Registrar  

who pointed out to the High Court that the applicant was not enrolled as an  

advocate  of  the  High Court.  The applicant  stated that  he was entitled  to  

practice as an advocate in Courts subordinate to the Patna High Court by  

placing reliance on Section 14(b) of the 1926 Act, which inter alia provided  

that an advocate shall be entitled as of right to practise in any other Court in  

British India and before any Tribunal authorised to take evidence. For that  

purpose,  he  placed  reliance  on  the  definition  of  the  word  “advocate”  in  

Section 2(1)(a) of the 1926 Act, which inter alia defined an “advocate” to  

mean  an advocate enrolled in the role of advocates of  a High Court under  

the provisions of the 1926 Act. This contention of the applicant came to be

33

accepted by the Patna High Court vide para 4, which reads as under:

“4. The  only  point  remaining  for  consideration  is  whether  there  is  any  law  in  force  which  debars  the  applicant from the right to practise in Courts subordinate  to this Court. The qualification for advocates, vakils and  attorneys under Section 4, Legal Practitioners Act, 1879,  requires for an advocate who wishes to appear in a Court  subordinate to a High Court in which he was not enrolled  that  he should  ordinarily  be  practising  in  the  Court  in  which he is enrolled. As the applicant is admittedly not  regularly practising in the Bombay High Court in which  he is enrolled as an advocate, this section, had it stood by  itself,  would  have  been  a  bar  to  his  practising  as  an  advocate in Courts subordinate to this Court. But Section  38, Legal Practitioners Act, provides that nothing in that  Act, except Section 36, shall apply to persons enrolled as  advocates of any High Court under the Bar Councils Act,  1926. From this it is clear that the provisions of Section 4  of the Act do not apply to, and cannot operate to debar  the applicant from practising in Courts subordinate to this  Court  as  he  is  in  fact  an  advocate  of  a  High  Court  enrolled under the Bar Councils Act of 1926.  Precisely  the same point arose in Madras and was considered by a  Full Bench of that Court in District Judge, Anantapur v.  K.V.  Vema  Reddi.  A.I.R.  1945  Mad.  144.  The  Full  Bench held that Section 4, Legal Practitioners Act, has no  application to advocates enrolled under the Bar Councils  Act by any High Court, and that being so, Section 4 had  to be ignored in the cases with which they were dealing  which were cases of persons enrolled as advocates in the  High  Court  at  Bombay  and  claiming  to  be  entitled  to  practise  in  Courts  subordinate  to  the  High  Court  at  Madras  as  advocate  by  virtue  of  their  enrolment  as  advocates  by the  Bombay High Court.  These  facts  are  indistinguishable from the facts of the present case, and  with great respect, I can see no reason to differ from the  view  taken  by  the  learned  Judges  who  decided  the  Madras case. The letter of this Court from the Registrar  referred  to  in  the  opening  paragraph  of  this  judgment

34

must, therefore, be recalled and it must be declared that  the applicant is entitled to practise as an advocate in the  Courts subordinate to this High Court.”                                                             (emphasis supplied)

20. The above judgment clearly indicates the meaning of the expression  

“an advocate of a High Court” in Article 217(2)(b). The important point to  

be noted is that though the applicant  had never practiced in the Bombay  

High Court, where he was enrolled, the High Court held that the applicant  

could not be debarred from practicing in Courts subordinate to the Patna  

High Court as he was in fact an advocate of a High Court enrolled under  

Indian  Bar  Councils  Act,  1926.  In  other  words,  entitlement  or  right  to  

practice conferred on the applicant by his name being enrolled on the rolls of  

the Bombay High Court, where he had never practiced, prevented him from  

being debarred from practicing in the Courts subordinate to the Patna High  

Court. It is also important to note that the same view has been taken by the  

Full  Bench  of  the  Madras  High  Court  in  the  case  of  District  Judge,  

Anantapur  v.  K.V. Vema Reddi and ors. reported in AIR 1945 Madras  

144.

21. At this stage, we may also refer to the provisions of the Advocates  

Act, 1961. The said 1961 Act provides for autonomous Bar Council in each  

State  and  also  for  All  India  Bar  Council  consisting  mainly  of  the

35

representatives of the State Bar Councils. Under the 1961 Act, a State Bar  

Council  has to enrol qualified persons as advocates and prepare a roll  of  

advocates practicing in the State and thereafter a common roll of advocates  

for the whole of India is to be prepared by the Bar Council of India. The  

Advocates whose names are entered in the common roll would be entitled as  

of right to practice in all the courts in India including the Supreme Court.  

Under  the  1961  Act,  a  State  Bar  Council  has  been  empowered  to  enrol  

qualified persons as Advocates on its roll. The class of legal practitioners  

known as attorneys was abolished by Advocates (Amendment)  Act, 1976  

and the pre-existing attorneys were required to become Advocates under the  

1961 Act, subject to their seniority under Section 17 of the Act. The scope of  

the 1961 Act came for consideration before this Court in the case of  O.N.  

Mohindroo (supra). One of the points which arose for determination in that  

case related to legislative competence. This Court was required to consider  

the scope of Entries 77 and 78 of List I read with Entry 26 of List III of the  

Seventh Schedule to the Constitution. It was held that Entries 77 and 78 in  

List  I  apart  from  dealing  with  the  constitution  and  organisation  of  the  

Supreme  Court  and  the  High  Courts  also  dealt  with  persons  entitled  to  

practise  before the Supreme Court and High Courts. It was held that, Entries  

77 and 78 of List I so far as they related to the persons entitled to practice

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before the Supreme Court and the High Courts are concerned, the power to  

legislate stood carved out from the general power relating to the provisions  

in Entry 26 of List III. It was held that the power to legislate in regard to  

persons entitled to practice before the Supreme Court and the High Courts is  

excluded  from Entry  26  in  List  III  and  is  made  the  exclusive  field  for  

Legislation  by  Parliament  alone.  The important  point  to  be noted is  that  

emphasis has been placed on the expression “entitled to practice” or “right to  

practice” in the Constitutional Scheme evidenced by not only the provisions  

of Article 217(2)(b) but also by the provisions contained in Article 145(1),  

Article 246 read with Entries 77 and 78 of List I and Entry 26 of List III of  

the Seventh Schedule to the Constitution. We quote hereinbelow paragraphs  

8, 9, 10 and 11 of the judgment of this Court in the case of O.N. Mohindroo  

(supra), which read as under:

“8. This being the scheme with regard to the constitution  and  organisation  of  courts  and  their  jurisdiction  and  powers let us next proceed to examine entry 26 in List  III. Entry 26, which is analogous to Item 16 in List III of  the Seventh Schedule to the 1935 Act, deals with legal,  medical and other professions but is not concerned with  the  constitution  and  organisation  of  courts  or  their  jurisdiction  and  powers.  These,  as  already  stated,  are  dealt with by entries 77, 78 and 95 in List I, entries 3 and  65 in List II and entry 46 in List III. Enactments such as  the  Indian  Medical  Council  Act,  1956,  the  Indian  Nursing Council Act, 1947, the Dentists Act, 1948, the  Chartered Accountants Act, 1949 and the Pharmacy Act,  1948, all Central Acts, would fall under the power to deal

37

with professions under entry 26 of List III in the Seventh  Schedule to the Constitution and Item 16 of List III of  1935 Act. It will, however, be noticed that entries 77 and  78 in List I are composite entries and deal not only with  the constitution and organisation of the Supreme Court  and  the  High  Courts  but  also  with  persons  entitled  to  practise before the Supreme Court and the High Courts.  The  only  difference  between  these  two  entries  is  that  whereas  the  jurisdiction  and  powers  of  the  Supreme  Court  are  dealt  with  in  entry  77,  the  jurisdiction  and  powers of the High Courts are dealt with not by entry 78  of List I but by other entries. Entries 77 and 78 in List I  apart from dealing with the constitution and organisation  of the Supreme Court and the High Courts also deal with  persons entitled to practise before the Supreme Court and  the High Courts. This part of the two entries shows that  to the extent that the persons  entitled to practise before  the Supreme Court and the High Court are concerned, the  power to legislate in regard to them is carved out from  the general power relating to the professions in entry 26  in List III and is made the exclusive field for Parliament.  The power  to legislate  in  regard to persons entitled  to  practise before the Supreme Court and the High Courts is  thus excluded from entry 26 in List III and is made the  exclusive field for legislation by Parliament only [Re :  Lily  Isabel  Thomas,  AIR  1964  SC  555  and  also  Durgeshwar v. Secretary, Bar Council,  Allahabad, AIR  1954 Allahabad 728]. Barring those entitled to practise in  the  Supreme Court  and the  High Courts,  the power to  legislate  with  respect  to  the  rest  of  the  practitioners  would still seem to be retained under entry 26 of List III.  To what  extent  the power  to  legislate  in  regard to  the  legal profession still remains within the field of entry 26  is not the question at present before us and therefore it is  not necessary to go into it in this appeal.  

9. The  Advocates  Act  was  passed  to  amend  and  consolidate the law relating to legal practitioners and to  provide for the constitution of Bar Councils and an All  India Bar. Section 2(a) and (i) define an 'advocate' and a

38

'legal  practitioner'.  Chapter  II  deals  with  the  establishment of Bar Councils and their functions, viz., to  admit persons on its roll,  to prepare and maintain such  roll,  to  entertain  and  determine  cases  of  misconduct  against advocates on its roll etc. Section 7 lays down the  functions of the Bar Council of India, that is, to prepare  and maintain a common roll of advocates, to lay down  the standards of professional conduct and etiquette, to lay  down  procedure  to  be  followed  by  its  disciplinary  committee and the disciplinary committee of each State  Bar Council, to exercise general supervision and control  over  State  Bar  Councils  etc.  Chapter  III  deals  with  admission  and  enrolment  of  advocates.  Section  16(1)  provides  that  there  shall  be  two  classes  of  advocates,  senior advocates and other advocates. Chapter IV deals  with the right to practise. Section 29 provides that subject  to  the  provisions  of  this  Act  and  the  rules  made  thereunder,  there  shall,  as  from the  appointed  day,  be  only  one  class  of  persons  entitled  to  practise  the  profession  of  law,  namely,  the  advocates.  Section  30  provides that subject to the provisions of this Act, every  advocate whose name is entered in the common roll shall  be entitled as of right to practise throughout the territories  to  which  this  Act  extends  in  all  courts  including  the  Supreme  Court  and  before  any  tribunal  or  any  other  authority before whom such advocate is by or under any  law  for  the  time  being  in  force  entitled  to  practice.  Chapter V deals with the conduct of advocates. Section  35 lays  down that  where  on receipt  of  a  complaint  or  otherwise a State Bar Council has reason to believe that  any advocate on its roll has been guilty of professional or  other misconduct, it shall refer the case for disposal to its  disciplinary committee.  The disciplinary committee has  to fix a date for the hearing of the case and give a notice  thereof to the advocate concerned and to the Advocate  General  of  the  State.  Sub-sec.  (3)  provides  that  such  committee after giving the advocate concerned and the  Advocate  General  an  opportunity  of  being  heard,  may  make, inter alia, an order suspending the advocate from  practice  as  it  may  deem  fit.  Similar  powers  are  also

39

conferred  on  the  Bar  Council  of  India  under  s.  36  in  relation to an advocate on the common roll. Section 37  gives a right of appeal to the Bar Council of India by any  person  aggrieved  by  an  order  of  the  disciplinary  committee of a State Bar Council. Section 38 confers a  right  of  appeal  to  the  Supreme  Court  on  any  person  aggrieved by an order by the disciplinary committee of  the  Bar  Council  of  India  under  s.  36  or  s.  37  and  empowers the Supreme Court to pass such orders thereon  as it deems fit.  

10. The  object  of  the  Act  is  thus  to  constitute  one  common  Bar  for  the  whole  country  and  to  provide  machinery  for  its  regulated  functioning.  Since  the  Act  sets  up  one  Bar,  autonomous  in  its  character,  the  Bar  Councils set up thereunder have been entrusted with the  power to regulate the working of the profession and to  prescribe rules of professional conduct and etiquette, and  the power to punish those who commit  breach of such  rules.  The  power  of  punishment  is  entrusted  to  the  disciplinary committees ensuring a trial  of an advocate  by  his  peers.  Sections  35,  36  and  37  lay  down  the  procedure  for  trying  complaints,  punishment  and  an  appeal to the Bar Council of India from the orders passed  by the State Bar Councils. As an additional remedy s. 38  provides a further appeal to the Supreme Court. Though  the Act relates to the legal practitioners, in its pith and  substance it is an enactment which concerns itself with  the  qualifications,  enrolment,  right  to  practise  and  discipline of the advocates. As provided by the Act once  a person is enrolled by any one of the State Bar Councils,  he becomes entitled to practise in all courts including the  Supreme  Court.  As  aforesaid,  the  Act  creates  one  common Bar, all its members being of one class, namely,  advocates. Since all those who have been enrolled have a  right  to  practise  in  the  Supreme  Court  and  the  High  Courts, the Act is a piece of legislation which deals with  persons entitled to practise before the Supreme Court and  the High Courts. Therefore the Act must be held to fall  within  entries  77  and  78  of  List  I.  As  the  power  of

40

legislation  relating  to  those  entitled  to  practise  in  the  Supreme Court and the High Courts is carved out from  the  general  power  to  legislate  in  relation  to  legal  and  other professions in entry 26 of List III, it is an error to  say, as the High Court did, that the Act is a composite  legislation partly falling under entries 77 and 78 of List I  and partly under entry 26 of List III.  

11. In this view, the right of appeal to this Court under  s.38  of  the  Act  creates  a  jurisdiction  and  power  in  relation to a matter falling under entries 77 and 78 of the  Union List and the Act would, therefore, fall under clause  (1) and not clause (2) of Art. 138. The argument that s.  38 falls under Art. 138(2) and is invalid on account of its  having been enacted without a special agreement with the  State Government is, therefore, without merit.”

        (emphasis supplied)

22. Apart from what is stated above, the judgment also emphasizes the  

fact that the 1961 Act inter alia provides that once a person is enrolled by  

any one of the State Bar Councils,  he becomes entitled to practice in all  

Courts including Supreme Court. The 1961 Act creates one common Bar, all  

its members being of one class, namely, Advocates.

23. Thus, it becomes clear from the legal history of the 1879 Act, 1926  

Act  and 1961 Act  that  they all  deal  with  a  person’s  right  to  practice  or  

entitlement to practice. The 1961 Act only seeks to create a common Bar  

consisting of one class of members, namely, Advocates. Therefore, in our  

view, the said expression “an advocate of a High Court” as understood, both,

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pre and post 1961, referred to person(s) right to practice. Therefore, actual  

practice  cannot  be  read  into  the  qualification  provision,  namely,  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 the High Court”. The substance of Article 217(2)(b) is that it  

prescribes an eligibility criteria based on “right to practice” and not actual  

practice.

24. The  question  still  remains  as  to  why  in  Article  217(2)(b)  the  

Constitution  makers  have  used  the  expression  “an  advocate  of  a  High  

Court”?

25. Answer to the above query is given by  Basu’s Commentary on the  

Constitution of India, sixth edition, page 236, which reads as under:

“Cl.(2): Qualifications for appointment as High  Court Judge. The points to be noted, in comparison with  the  Government  of  India  Act,  1935,  are  -  (a)  the  exclusion of Barristers of the United Kingdom who are  not  advocates  of  a  High  Court  of  India  within  the  meaning of sub-cl. (b);  (b) the exclusion of members of  the  I.C.S.  from  post-Constitution  appointments  unless  they satisfy cl. (2)(a).

It is clear from cl. (2) that all appointments to the  High  Court  Bench,  made  after  commencement  of  the  Constitution must go only to those who satisfy one of the  two tests laid down in sub-cls. (a) and (b) of cl. (2).”

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26. Under the 1926 Act, which Act was in force when the Constitution  

was  framed,  even  a  Barrister  from United  Kingdom was  entitled  to  get  

himself enrolled as an advocate of a High Court. He had no right to practice  

in  the  High  Court  without  getting  himself  enrolled.  (see  Nihal  Chand  

Shastri   v.  Dilawar Khan and Ors. reported in AIR 1933 Allahabad 417).  

27. We quote hereinbelow the relevant paragraphs from the judgment in  

Nihal Chand (supra), which read as follows:

“…This Court  under its  powers  conferred on it  by the  Letters Patent is entitled to enrol advocates for practising  in this Court and Courts subordinate to it, vide Clause 7  which runs as follows:

“And we do hereby authorize and empower  the  said  High  Court  of  Judicature  at  Allahabad to approve, admit and enrol such  and  so  many  Advocates,  Vakils and  Attorneys  as  to  the  said  High  Court  shall  deem meet....”

The High Court framed certain rules  laying down  the qualifications needed for enrolment of advocates. The  rules now in force are to be found in  Chap. 15 of the  Rules  of  the  Court.  They  are  rules  made  by  the  Bar  Council since the Bar Councils Act, came into force, and  they have been approved by the High Court. Under Rule  1 of these rules:

“any Barrister of England...and any graduate  of law of any University  mentioned in the  schedule, who in each case has further gone  through  a  course  of  training  for  one

43

year...may  present  an  application  for  his  admission  to  the  roll  of  advocates  of  the  Court.”

The older rules more or less on similar lines.  The  rules  and  the  Clause  7,  Letters  Patent,  show  that  a  Barrister of England as a Barrister has no right to practise  in the High Court or in any Court subordinate to the High  Court.  Certain qualifications  of different  kinds are laid  down for  admission  as  advocates,  and  the  fact  that  a  candidate  is  a  Barrister  of  England  is  one  kind of  qualification  for  enrolment.  When  a  person  who  has  taken the law degree of Allahabad University is enrolled  as an advocate, he becomes as much an advocate of the  Allahabad  High  Court  as  a  Barrister  of  England.  The  Rules of the High Court make no distinction, between the  two persons with different qualifications. Before the Bar  Councils  Act  was  passed  and  was  acted  upon,  the  Barristers from England were admitted on the roll of the  High Court as advocate,  while the Indian Graduates of  law were  admitted  as  vakils.  Later  on  certain  eminent  vakils were given the status of advocates and, thereupon,  they  became  as  much  advocates  as  Barristers  from  England  enrolled  in  the  Allahabad  High  Court.  In  all  these cases the right of a Barrister to appear in the High  Court  or  in  the  Courts  subordinate  to  the  High  Court  arose  from  his  enrolment  as  an  advocate  and  not  otherwise.

Having been enrolled as an advocate, the Barrister  or the Graduate at Law of the Indian University acquires  certain privileges and the privilege is to appear, plead or  act in any suit or appeal, vide Rule 10 of the High Court  Rules in Chap. 15, p. 100. It is common ground that a  barrister in England as such is not entitled to act. He can  only plead. It follows from the Rules of the High Court  of Allahabad that the disability  of a Barrister-at-law to  act  in  England  disappears  on  his  being  enrolled  as  an  advocate  of  the  High  Court.  A  Barrister-at-law  in  England not being entitled to act is not allowed to have a

44

lien on any litigant's  papers or  money,  but  a Barrister,  who is an advocate of the High Court of Allahabad, may  have such a lien. This is recognized by Rule 14, Chap.  15, (p. 101) of the High Court Rules. Rule 15 of the same  Chapter at p. 102, lays down that an Advocate (including  a Barrister-Advocate) is entitled to appear, plead and act  in  any  Court  Subordinate  to  the  High  Court.  In  the  province of Agra there are no Solicitors, and a Barrister- Advocate  practising  in  the  High  Court  or  in  any  Subordinate  Court  is  entitled  to  see  his  clients  and  to  settle his fees. This he cannot do in England.

From  what  has  been  said,  it  follows  that  the  peculiar  position  of  a  Barrister-at-law  in  England  disappears in the Province of Agra on his being admitted  as  an  Advocate  of  the  High  Court.  He  combines  in  himself  the  capacities  of  a  Barrister  and  Solicitor  of  England.  He  is  as  much  subject  to  the  disciplinary  jurisdiction  of  the  High  Court  as  a  non-Barrister- Advocate, while a Barrister of England while practising  there is  not  an officer  of the Court  and in the case of  misconduct,  his case is referred to the Benchers of the  Inn to which he belongs. In England a Barrister cannot  act, cannot receive a client or receive instructions from  him except through a Solicitor. But this disability does  not exist in him in the Province of Agra, if he has been  enrolled as an advocate.”                    (emphasis supplied)

28. The point to be noted is that powers vested in the High Court by the  

Letters Patent the qualification prescribed for enrolment as an Advocate of  

the  High  Court  was  the  law degree  of  Allahabad  University  or  that  the  

candidate is a Barrister of England. Similarly, under Section 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

45

Member  of  Indian  Civil  Service  etc..  To  confine  the  qualification  for  

appointment  as  a  Judge  of  a  High  Court  to  only  one  instead  of  four  

categories mentioned in section 220(3), the Constitution framers have used  

only one consolidated expression, namely, “an advocate of a High Court”.  

This expression finds place even in the 1961 Act, which has been enacted in  

order to consolidate various categories into one class,  namely, Advocates  

[see judgment of this Court in O.N. Mohindroo (supra)]. It is for this reason  

that  the  Supreme  Court  in  the  case  of  Prof.  C.P.  Agarwal (supra)  has  

observed vide paragraphs 6 and 9 as under:

“6. Apart from this aspect,  some of the earlier  statutes  bearing on the same subject have also used the very same  or similar expression. The Legal Practitioners Act, 1879  defined by Section 3 a "Legal Practitioner" as meaning  an  Advocate,  Vakil  or  Attorney  of  any  High  Court,  a  Pleader, Mukhtar or Revenue-agent. Section 4 of that Act  provided:  

“Every  person  now  or  hereafter  entered as an Advocate or Vakil on the roll  of any High Court under the Letters Patent  constituting such Court, or under Section 41  of this  Act,  or enrolled as a pleader  in the  Chief Court of the Punjab under Section 8 of  this  Act,  shall  be entitled to practice in all  the  Courts  subordinate  to the  Court  on the  roll of which he is entered----and any person  so  entered  who  ordinarily  practices  in  the  Court on the roll of which he is entered or  some  Court  subordinate  thereto  shall,  notwithstanding  anything  herein  contained,  be entitled, as such, to practice in any Court

46

in  the  territories  to  which this  Act  extends  other than a High Court on whose roll he is  not  entered,  or,  with  the  permission of  the  Court--in any High Court on whose roll he is  not entered--.”

Section 41 of the Act empowered a High Court to make  rules  as  to  the  qualifications  and  admission  of  proper  persons to be "Advocates of  the Court"  and subject  to  such rules  to  enrol  such and so many Advocates  as  it  thought fit. These provisions clearly show that advocates  enrolled under Section 41 were enrolled as advocates of a  High Court and were entitled, once enrolled, to practice  either  in  the  High Court  or  courts  subordinate  to such  High  Court  or  both.  There  was  thus  in  the  case  of  advocates so enrolled no distinction between those who  practiced in the High Court and those who practiced in  the courts subordinate to such High Court as they were  entitled on enrolment, as aforesaid, to practice either in  the High Court or in a court or courts subordinate thereto  or both. The Indian Bar Councils Act, XXXVIII of 1926  also defined an 'advocate'  meaning one "entered in the  roll of advocates of a High Court under the provisions of  this Act." Section 8 laid down that no person would be  entitled as of right to practice in any High Court unless  his name was entered in the roll of "the advocates of the  High Court  maintained  under  this  Act."  Under Section  8(2),  the  High  Court  was  required  to  prepare  and  maintain "a roll of advocates of the High Court" in which  should be entered the names of (a) all persons who were,  as  advocates,  vakils  or  pleaders,  entitled as of right  to  practice in the High Court immediately before the date on  which this section came into force in respect thereof; and  (b) all other persons who were admitted to be "advocates  of the High Court" under this Act. Section 9 empowered  the Bar Council to make rules to regulate the admission  of  persons  to  be  "advocates  of  the  High  Court",  and  Section 10 gave power to the High Court in the manner  therein provided to reprimand, suspend or remove from  practice "any advocate of the High Court" whom it found

47

guilty of professional or other misconduct. Section 14(1)  of  the  Act  provided  that  an  advocate,  i.e.,  one  whose  name was entered under this Act in the roll of advocates  of a High Court, shall be entitled as of right to practice in  the High Court of which he is an advocate or in any other  court save as otherwise provided by Sub-section 2 or by  or under any other law for the time being in force. Once,  therefore, the name of an advocate was entered in the roll  of advocates of a High Court under one or the other Act,  he was entitled to practice in the High Court and in courts  subordinate thereto or in any other court subject of course  to the provisions aforesaid. He was thus an advocate of  the High Court irrespective of whether he practiced in the  High Court or in the courts subordinate thereto, and as  seen from Section 10 of the Bar Councils Act, he became  amenable  to  the  disciplinary  jurisdiction  of  the  High  Court by reason of his being enrolled as an advocate of  the High Court. The expression "an advocate of a High  Court"  must,  therefore,  mean,  in  the  light  of  these  provisions, an advocate whose name has been enrolled as  an  advocate  of  a  High  Court,  no  matter  whether  he  practiced in the High Court itself or in courts subordinate  to it or both. The expression "an advocate or a pleader of  a  High  Court"  having  thus  acquired  the  meaning  as  aforesaid, it must be presumed that a similar expression,  namely "a pleader of a High Court for a period of not less  than ten years"  was used in the same sense in Section  101(3)(d) of the Government of India Act,  1915, when  that section laid down the qualifications for the office of  a Judge of a High Court in the case of a pleader.  The  same phraseology was also repeated in Section 220(3)(d)  of  the  Government  of  India  Act,  1935,  except  for one  change, namely, that in calculating 10 years' standing, his  standing  as  a  pleader  of  2  or  more  High  Courts  in  succession was also to be included. …

9. Counsel next relied on Article 233(2) in support of the  construction suggested by him of Article 217(2)(b) and  pointed out that wherever the Constitution did not wish to

48

insist on an appointee having been an advocate practising  in  a  High  Court,  it  has  used  a  different  expression,  namely,  an  advocate  simpliciter,  as  in  Article  233(2).  Article 233 deals with appointment of district judges and  Clause 2 thereof provides that a person not already in the  service of the Union or the State shall only be eligible to  be appointed a district judge if he has been for not less  than  seven  years  an  advocate  or  a  pleader  and  is  recommended by the High Court for appointment.  It  is  true  that  in  this  clause  the  word  "advocate"  is  used  without  the  qualifying  words  "of  a  High  Court".  It  is  difficult,  however,  to  see  how  the  fact  that  the  word  "advocate" only used in connection with the appointment  of  a  district  judge  would  assist  counsel  in  the  construction  suggested  by  him  of  the  expression  "advocate of any High Court" in Article 217, or that that  expression  must  mean  an  advocate  who  has  had  the  necessary  number  of  years'  practice  in  the  High Court  itself.  The  distinction,  if  any,  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  in any event after the coming into force of the Advocates  Act, 1961, as by virtue of Section 16 of that Act there are  now  only  two  classes  of  persons  entitled  to  practice,  namely, senior advocates and other advocates.”

                  (emphasis supplied)

29. To complete our discussion, we may also mention that the expression  

“two or more such courts in succession” in Article 217(2)(b) is not of any  

real  relevance.  Prior  to  the  1961  Act,  when  a  person  was  an  advocate  

enrolled in a High Court, the words “in succession” suggested that a person  

enrolled  in  more  than  one  High  Court  could  not  multiply  his  years  of  

enrolment by the number of courts in which he stood enrolled. For example,

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a person enrolled for five years in two High Courts simultaneously would  

not be an advocate of ten years standing. If he was enrolled in more than one  

court in succession only then would this be satisfied.

Justiciability of appointments under Article 217(1):

“The overarching constitutional justification for judicial   review,  the  vindication  of  the  rule  of  law,  remains   constant,  but  mechanism  for  giving  effect  to  that   justification vary”.                                                                     …Mark Elliott

“Judicial  review  must  ultimately  be  justified  by   constitutional principle.”                                                                            …Jowett

30. In this case, we are concerned with the mechanism for giving effect to  

the  Constitutional  justification  for  judicial  review.  As  stated  above,  

“eligibility” is a matter of fact whereas “suitability” is a matter of opinion. In  

cases involving 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 are matters of opinion.

31. Appointment  under  Article  217(1),  vis-à-vis  qualification  under  

Article 217(2), is the function of participatory integrated process in which  

there is deliberation and consultation between the Supreme Court Collegium

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and  the  High  Court  Collegium.  In  cases  of  consensus,  the  question  of  

primacy does not arise. The Supreme Court Collegium does not sit in appeal  

over  the  recommendations  of  the  High Court  Collegium. The concept  of  

plurality of Judges in the formation of the opinion of the CJI is one of inbuilt  

checks  against  the  likelihood  of  arbitrariness  or  bias.  At  this  stage,  we  

reiterate  that  ‘lack  of  eligibility”  as  also  “lack  of  effective  consultation”  

would certainly fall in the realm of judicial review. However, when we are  

earmarking a joint venture process 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 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 discharge of the assigned role by each functionary helps to  

transcend the concept of primacy between them. It is important to note that  

each  constitutional  functionary  involved  in  the  participatory  consultative  

process  is  given  the  task  of  discharging  a  participatory  constitutional  

function,  there  is  no  question  of  hierarchy  between  these  constitutional  

functionaries.  Ultimately,  the  object  of  reading  such  participatory

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consultative process 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 Court Advocates-on-Record  

Association (supra) and also in the judgment in Re. Special Reference No.  

1  of  1998  (supra).  Consequently,  judicial  review lies  only  in  two cases,  

namely, “lack of eligibility” and “lack of effective consultation”. It will not  

lie on the content of consultation.

Application  of  Principles  enumerated  above  to  the  facts  of  the Present Case:

32. Having spelt out the dichotomy between appointment on the basis of  

fitness/suitability under Article 217(1) vis-à-vis qualifications under Article  

217(2),  we  are  of  the  view  that  respondent  no.  3  herein  satisfies  the  

qualifications prescribed under Article 217(2)(b). For this purpose, we are  

reading  Section  217(2)(b)  with  Explanation  (aa).  Respondent  No.  3  has  

worked as a Member of ITAT between the period 3.12.1997 and 6.8.2008  

(11  years).  Prior  thereto,  he  has  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  

enumerated hereinabove,  both,  with regard to  entitlement  to  practice  and

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computability of the period during which respondent no. 3 has worked in  

ITAT, he stood qualified for appointment as a Judge of the Allahabad High  

Court.  Therefore,  this  case  does  not  suffer  from  the  vice  of  lack  of  

eligibility. As stated above, in this case, the matter has arisen from the writ  

of  quo  warranto  and  not  from  the  writ  of  certiorari.  The  bio-data  of  

respondent no. 3 was placed before the Collegiums. Whether respondent no.  

3 was “suitable” to be appointed a High Court judge or whether he satisfied  

the fitness test as enumerated hereinabove is beyond justiciability as far as  

the present proceedings are concerned. We have decided this matter strictly  

on the basis of the Constitutional scheme in the matter of Appointments of  

High  Court  Judges  as  laid  down in  the  Supreme  Court  Advocates-on-

Record Association  (supra) and in Re.  Special Reference No. 1 of 1998  

(supra).  Essentially,  having  worked  as  a  Member  of  the  Tribunal  for  11  

years,  respondent  no.  3  satisfies  the  “eligibility  qualification”  in  Article  

217(2)(b) read with Explanation (aa).  

33. One of the submissions advanced before us on behalf of the Original  

Petitioner was that consultation by members of the two Collegiums was on  

the basis of the performance of respondent no. 3 as a member of  ITAT, the  

source of appointment being from “service”. It was urged that there was no  

consultation  regarding  respondent  no.  3  under  Article  217(2)(b).  It  was

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urged that if the performance of respondent no. 3 during the period he was  

holding  the  office  of  the  Member  of  ITAT  was  the  subject  matter  of  

consultation, then, it cannot be said to be a consultation at all as there has  

not  been  any  consultation  regarding  respondent  no.  3  under  Article  

217(2)(b). In other words, the contention before us was that since respondent  

no. 3 was shown as a service Judge, he should have been considered under  

Article  217(2)(a).  This  argument  advanced  on  behalf  of  the  Original  

Petitioner  is  misconceived.  The  very  purpose  for  enactment  of  Article  

217(2)(a) and Article 217(2)(b) is to provide for a mix of those from the Bar  

and those from Service who has the past experience of working as judicial  

officers/officers in 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  

appointment to the  High Court.  Therefore,  for  eligibility  purposes  clause  

(aa) of the Explanation read with sub-clause (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 appointed as  a  

High  Court  Judge.  This  aspect  of  “eligibility”  has  nothing  to  do  with  

“suitability”.

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34. Coming  to  the  question  of  consultation,  it  has  been  submitted  on  

behalf  of  the  Original  Petitioner  that  there  has  been  lack  of  effective  

consultation, particularly when “reliable information” supplied by the three  

Judges  Sub-committee  appointed  to  examine  the  quality  of  judgments  

rendered  by  respondent  no.  3  stood  withheld  from  the  Supreme  Court  

Collegium. According to the  Original  Petitioner,  the Chief justice of the  

Allahabad  High  Court  had  appointed  a  three  Judges  Sub-committee  to  

examine the quality of judgments of the persons coming under the zone of  

consideration  from “service”  quota  and,  therefore,  if  the  Sub-committee  

gave  adverse  comments  about  the  reputation  of  respondent  no.  3  in  the  

course of his working as a Member of ITAT and the Chief Justice of the  

Allahabad High Court fails to forward that information to the Supreme Court  

Collegium, it would certainly constitute a ground for judicial review based  

on lack of effective consultation. In this connection, reliance has been placed  

on paragraphs 29 to 32 of the judgment in Re. Special Reference No. 1 of  

1998, which read as under:

“29. The majority judgment in the  Second Judges case,   (1993) 4 SCC 441 requires the Chief Justice of a High  Court to consult his two seniormost puisne Judges before  recommending  a  name  for  appointment  to  the  High  Court.  In  forming  his  opinion  in  relation  to  such  appointment, the Chief Justice of India is expected

55

“to  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 Chief Justice  of India may also ascertain the views of one  or more senior Judges of that High Court....”

The  Chief  Justice  of  India  should,  therefore,  form his  opinion  in  regard  to  a  person  to  be  recommended  for  appointment to a High Court in the same manner as he  forms it in regard to a recommendation for appointment  to the Supreme Court, that is to say, in consultation with  his  seniormost  puisne  Judges.  They  would  in  making  their decision take into account the opinion of the Chief  Justice of the High Court which “would be entitled to the  greatest weight”, the views of other Judges of the High  Court  who may have been consulted and the views of  colleagues  on  the  Supreme  Court  Bench  “who  are  conversant with the affairs of the High Court concerned”.  Into that last category would fall Judges of the Supreme  Court  who  were  puisne  Judges  of  the  High  Court  or  Chief Justices thereof, and it is of no consequence that  the High Court is not their parent High Court and they  were  transferred  there.  The  objective  being  to  gain  reliable information about the proposed appointee, such  Supreme Court Judge as may be in a position to give it  should  be  asked  to  do  so.  All  these  views  should  be  expressed in writing and conveyed to the Government of  India along with the recommendation.

30. Having regard to the fact that information about a  proposed  appointee  to  a  High Court  would  best  come  from the Chief Justice and Judges of that High Court and  from Supreme Court Judges conversant with it,  we are  not persuaded to alter the strength of the decision-making  collegium’s size; where appointments to the High Courts  are concerned, it should remain as it is, constituted of the

56

Chief  Justice  of  India  and  the  two  seniormost  puisne  Judges of the Supreme Court.

31. In the context of the judicial review of appointments,  the majority judgment in the  Second Judges case said:  (SCC pp. 707-08, para 480)  

“Plurality of Judges in the formation of the  opinion  of  the  Chief  Justice  of  India,  as  indicated,  is  another  inbuilt  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.”

The judgment added: (SCC p.708, para 482)

“Except  on  the  ground  of  want  of  consultation  with  the  named  constitutional  functionaries or  lack  of  any  condition  of  eligibility in the case of an appointment, ...  these matters are not justiciable on any other  ground....”

32. Judicial  review in the case of an appointment or  a  recommended appointment,  to  the  Supreme Court  or  a  High Court is, therefore, available if the recommendation  concerned is not a decision of the Chief Justice of India  and his seniormost colleagues, which is constitutionally  requisite.  They  number  four  in  the  case  of  a  recommendation for appointment to the Supreme Court  and two in the case of a recommendation for appointment  to a High Court. Judicial review is also available if, in  making  the  decision,  the  views  of  the  seniormost  Supreme Court Judge who comes from the High Court of  the proposed appointee to the Supreme Court have not  been taken into account. Similarly, if in connection with  an appointment or a recommended appointment to a High

57

Court, the views of the Chief Justice and senior Judges of  the  High Court,  as  aforestated,  and of  Supreme  Court  Judges  knowledgeable  about  that  High Court  have  not  been sought or considered by the Chief Justice of India  and his two seniormost puisne Judges, judicial review is  available.  Judicial  review  is  also  available  when  the  appointee is found to lack eligibility.”                                                              (emphasis supplied)

35. We find no merit in the above submissions. Apart from legal niceties,  

on facts,  we find on meticulous scrutiny of the confidential  files 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 Member of ITAT during his  

nascent  years  in  office  was  before  the  Supreme Court  Collegium,  albeit  

from a different channel. In fact, the information contained in the Report of  

the  Sub-committee  was also brought  to  the notice  of  the  Supreme Court  

Collegium, though through a different route. 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 respondent no. 3 for appointment as a  

High Court Judge. On facts, we hold, that there was effective consultation.

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Since  the  consultation  process  stood  complied  with,  its  content  was  not  

amenable  to  judicial  review  (see  para  32,  quoted  hereinabove,  of the  

judgment in Re. Special Reference No. 1 of 1998).

36. Before concluding, we may state that “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. At the end of the day “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, as stated above, is the function of  

an integrated participatory consultative process. We are constrained to make  

this  remark in view of,  to say the least,  baseless allegations made in the  

supplementary  affidavit  dated  15.4.2009  against  institutional  decision  

making process.

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37. For reasons given hereinabove, Transferred Case (C) No. 6 of 2009  

stands dismissed.

……………………………J.                                              (S.H. Kapadia)

……….………………….J.                                             (Aftab Alam)   

New Delhi; July 6, 2009.