The Supreme Court on Wednesday pulled up members of Chennai Bar for taking “pre-mature step” of filing a petition against recommendation for appointment of judges to Madras High Court and disapproved of the conduct of a sitting judge there who had interfered with a hearing in the case.
The apex court said conduct of Justice C S Karnan, who on January 9 walked in as a special bench of the high court was hearing the matter, “raised a negative murmur about the maintenance of propriety in judicial proceedings”.
Justice Karnan had said the choice of judges to be appointed was not fair.
“The sudden unfamiliar incident made us fume inwardly on this raw unconventional protest that was unexpected, uncharitable and ungenerous, and to say the least it was indecorous,” a bench comprising justices B S Chauhan, J Chelameswar and M Y Eqbal said.
While deliberating on the issue of petition seeking recall of the 12 names recommended by the collegium of the High Court, the apex court said instead of waiting for the proposal to be considered by the collegium headed by Chief Justice of India they took a “premature step” of filing the petition before the Madras High Court.
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“Thus, it is apparent that judicial review is permissible only on assessment of eligibility and not on suitability. It is not a case where the writ petitioners could not wait till the maturity of the cause i.e. decision of the collegium of this court.
“They took a premature step by filing writ petitions seeking a direction to Union of India to return the list sent by the collegium of the Madras High Court without further waiting its consideration by the Supreme Court collegium.”
On the Justice Karnan incident, the bench said, “In ordinary life, such incidents are not reviewed with benevolence or generosity, but here we are concerned with a larger constitutional issue of the justiciability of the cause.”
However, the bench said the “personal conduct” of the sitting judge, who was not a party to the proceedings before the high court “does not require any judicial response for investigating the unusual circumstances and scrutinising the same as it is not necessary to decide the issue at hand”.”The judge may have found himself caught in a conflict of class or caste structure and it appears that matured patience
might have given way to injure rules of protocol, but that is not the issue that has to be answered by us. Such aspects may require a more serious judicial assessment if required in future and therefore this question is left entirely open,” the bench said.
However, it observed that “It is said that immense dignity is expected, and weaknesses or personal notions should not be exposed so as to affect judicial proceedings.”
“Judges cannot be governed, nor their decisions should be affected, only by the obvious, as proceedings in a court are conducted by taking judicial notice of such facts that may be necessary to decide an issue.”It is for this reason, that the paramount principle of impartiality that is to be available in the character of a judge has been humbly expounded by none other than Justice Felix Frankfurter,” the bench said.
It referred to the apex court judgement to suggest that even after the President accepts the recommendations and warrants of appointment are issued, the court is competent to quash the warrant wherein the recommendations were found not possessing eligibility for the elevation to the high court as per Article 217(2).
“In such a fact-situation, the writ petitioners or the members of the Bar could approach the Chief Justice of India or the Law Minister, but instead of resorting to such a procedure, the writ petitioners had adopted an unwarranted short cut knowing it fully well that on the ground of the suitability, the writ petitions were not maintainable,” the bench said.
The High Court on January 8 and 9 had passed interim orders to maintain status quo regarding the process of recommendation of 12 aspirants after the Chief Justice of the Madras High Court had forwarded the proposal to the Supreme Court collegium for consideration.
The high court challenged the interim orders before the apex court which on January 13 directed maintaining of status quo and transferred the petitions to the top court.
During the hearing, the bench was informed that the apex court collegium by the resolution of February 13 returned the whole list of advocates as well as of judicial officers, with intimation to the Tamil Nadu Chief Minister and the Governor with an observation that the new Chief Justice of Madras High Court as and when appointed, would re-look into the matter.
The Chief Justice of the High Court would send recommendations in consultation with two senior most colleagues after taking into consideration all the relevant facts.