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REPORTABLE  

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE  JURISDICTION

SPECIAL LEAVE PETITION (C) NOs. 892-893/2014   Registrar General, High Court of Madras            …Petitioner

Versus  

R. Gandhi & Ors.          …Respondent WITH

        TRANSFERRED  CASE (CIVIL) NO. 31 OF 2014 (Arising out of WP (C) No. 375/2014 pending in Madras High Court)

WITH

TRANSFERRED CASE (CIVIL) NO. 29 & 30 OF 2014 (Arising out of TP(C) NOS.  383 & 384 /2014(D.3826/2014)

High Court of Madras by Registrar General         …Petitioner

Versus          

P. Rathiram  & Ors.      …Respondents

J U D G M E N T   

Dr. B.S. CHAUHAN, J.

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1. The issue  of  selection  and elevation to  the office  of  a  High  

Court Judge has engaged the attention of this Court. The issue of such  

selection  reflecting  transparency,  objectivity  and  constitutional  

sustainability has engaged the attention of this Court since this cause  

came to be espoused and dealt with by a nine-Judge Bench of this  

Court in  Supreme Court Advocates-on-Record Assn. v. Union of  

India, (1993) 4 SCC 441, more particularly known as Second Judges  

case.  

The said decision also became a subject matter of a Presidential  

Reference being Special Reference No.1 of 1998 that was answered  

again by a nine-Judge Bench reported in (1998) 7 SCC 739.   

2. One of  the issues  involved in  both these  decisions  has  been  

issue of judicial review of appointments as a High Court Judge or a  

Supreme Court Judge. The Second Judges case (supra) answered it in  

paragraphs  480  to  482  of  the  aforesaid  decision  and  the  Special  

Reference also answered the same emphasising the limited scope of  

judicial  review  and  restrained  the  justiciability  of  such  

recommendations and appointment of Judges.  

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3. More recently, the issue with regard to the elevation of a High  

Court  Judge  on  a  recommendation  of  the  collegium  came  to  be  

scrutinised in a challenge raised before the Allahabad High Court that  

came to be finally decided by this Court in Mahesh Chandra Gupta  

v.  Union  of  India (2009)  8  SCC  273.  It  was  again  held  therein  

following the aforesaid decisions that suitability of a recommendee  

and the consultation are not subject to judicial review but the issue of  

lack of eligibility or an effective consultation can be scrutinised for  

which a writ of quo warranto would lie.  

4. In  the  aforesaid  backdrop,  the  present  petitions  came  to  be  

entertained questioning the orders of  the Madras High Court  dated  

8.1.2014 and 9.1.2014 by which and whereunder the Madras High  

Court entertained writ petitions and passed interim orders to maintain  

status quo regarding the process of recommendation of 12 aspirants to  

the aforesaid office after the Chief Justice of the Madras High Court  

had  forwarded  the  said  recommendations  to  the  Supreme  Court  

collegium  for  consideration.  The  restraint  order  also  directed  the  

various constitutional authorities including the State Government and  

the Union Government to act accordingly as the prayer made in the  

petitions was to return back the recommendations on the allegation  

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that the recommendations were not in conformity with an effective  

consultative  process  and  that  they  were  otherwise  for  reasons  

disclosed unacceptable.      

5. This Court vide order dated 13.1.2014 entertained the Special  

Leave Petitions  (Civil)  Nos.  892-893 of  2014 filed  by the  Madras  

High Court against the orders passed by the Madras High Court on  

8.1.2014 and 9.1.2014 in Writ Petition No. 375 of 2014, restraining  

the High Court to proceed with the hearing of the said writ petition  

and issued suo motu show cause as to why the said writ petition be not  

transferred for hearing to this court. It appears that in the meanwhile,  

Writ Petition No. 1082/2014 titled  S. Doraisamy v. The Registrar  

General,  Supreme Court  of  India & Ors. and Writ  Petition No.  

1119/2014 titled  P. Rathinam v.  Union of  India & Ors.,  dealing  

with the same subject matter had also been filed before the Madras  

High Court.  The Madras High Court  preferred transfer  petitions to  

transfer the said two writ petitions to this court for hearing alongwith  

transferred case arising out of WP (C) No. 375/2014.    

Permission  to  file  TP  (C)  arising  out  of  D.No.3826/2014  is  

granted. We allow the transfer petitions and all the three aforesaid writ  

petitions stand transferred to this Court.  

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Thus, in view thereof, the Special Leave Petitions (C) Nos. 892-

893/2014  have  become  insignificant  and  stand  disposed  of  

accordingly.      

6. The facts and circumstances giving rise to these cases are  that:

A. The  collegium  of  the  Madras  High  Court  consisting  of  the  

Hon’ble Chief  Justice  and two senior  most  Judges  vide Resolution  

dated 12.12.2013 recommended a list of 12 persons comprising of ten  

advocates and two District Judges for consideration by the collegium  

of  Supreme Court  for  appointment  as  Judges  of  the  Madras  High  

Court. The said list was forwarded to the Ministry of Law and Justice,  

Government of India, the Supreme Court of India as well as to the  

Government of Tamil Nadu on 14.12.2013 as required under the law.   

B. The writ petitioner, Mr. R. Gandhi, Senior Advocate, filed Writ  

Petition No. 375 of  2014 before the Madras High Court  seeking a  

direction to the Union of India and the Supreme Court collegium to  

return the said list as the recommendees therein were not suitable as  

per the assessment of the writ petitioner and other members of the Bar  

for  elevation.  More  so,  the  collegium  of  the  High  Court  did  not  

recommend the name of the eligible advocates belonging to different  

castes. The Hon’ble Chief Justice and first senior most Judge did not  

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hail originally from Tamil Nadu so they were unable to understand  

and  appreciate  the  complex  social  structure  of  the  State  of  Tamil  

Nadu.   

C. The Division Bench of the Madras High Court entertained the  

writ  petition  and  passed  the  orders  dated  8.1.2014  and  9.1.2014.  

According to the first order, an interim direction was issued directing  

the Ministry of Law and Justice, Government of India to maintain the  

status quo, while the order dated 9.1.2014 restrained the Government  

of Tamil Nadu from making any recommendation in this regard and  

further to maintain the status quo till 21.1.2014.   

D. Aggrieved, the Madras High Court through Registrar General  

preferred Special Leave Petition (C) Nos. 892-893 of 2014, wherein  

after  hearing  the  learned  Attorney  General,  appearing  for  the  

petitioner – High Court, this Court on 13.1.2014 passed the following  

order:    

“Mr.  G.E.  Vahanvati,  learned  Attorney  General   appearing on behalf of the petitioner has submitted that   the Madras High Court in the impugned judgments itself,   has taken note of the judgment of this Court in Mahesh   Chandra Gupta vs. Union of India, 2009 (8) SCC 273,   wherein  it  has  been  quoted that  judicial  review is  not   permissible on the ground of suitability of the candidate   whose name has been recommended, therefore, the High   Court ought not to have entertained the petition.  

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Secondly,  it  has  been  submitted  that  one  of  the   Hon'ble  Judge  has  entered  into  the  Court  and  made   certain suggestions to the Bench hearing the case and   there had been commotion in the Court, therefore, there   is no conducive atmosphere where the matter should be   permitted to be continued with the said High Court.  

In  view  of  the  above,  issue  notice  to  the   respondents returnable in two weeks as to why this case   should not be transferred to this Court and heard by a   Bench  of  minimum  three  judges.  In  addition  to  the   normal mode of service, dasti service, is permitted.  

Meanwhile,  the  High  Court  is  restrained  to   proceed further with the matter in W.P.No.375/2014 and   the interim order passed by the High Court to maintain   status quo regarding the process of the recommendations   stands  vacated  for  the  reason  that  it  was  merely  a   recommendation and the said recommendation has to be   filtered at various levels and it will take a long time.   List after two weeks.”    

E. When  the  matter  came  up  for  hearing  on  18.2.2014,  Shri  

Prabhakaran, learned senior counsel appearing on behalf of the writ  

petitioner made a  statement  that  the Supreme Court  collegium had  

returned the entire list to the Madras High Court for reconsideration,  

the  matter  rendered  infructuous.   The  Court  passed  the  order  

dismissing the Writ Petition as having become infructuous. However,  

since  two other writ petitions had already been filed in the Madras  

High Court with respect to the same subject matter, the High Court  

filed the transfer petitions.  Some of the learned counsel appearing in  

these cases suggested that the matter required to be heard on merit.  

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As  the  order  passed  earlier  had  not  been  signed,  the  matter  was  

adjourned to be listed for hearing on 25.2.2014.

7. When  the  matter  came  on  Board  on  25.2.2014,  the  learned  

Attorney  General  and  other  Advocates  appearing  in  these  cases  

insisted  that  matters  must  be  heard  at  least  to  decide  the  issue  of  

maintainability  otherwise  in  future,  it  would  be  impossible  to  

complete  the process  of  appointment  of  Judges in  the High Court,  

particularly when sitting Judges of the High Court also have started  

appearing  before  the  Bench  hearing  the  case  in  support  of  the  

contentions of the writ petitioners.  

8. Shri Prabhakaran, learned senior counsel, has submitted that the  

advocates  -  recommendees  were  not  suitable  for  appointment  as  a  

Judge of the Madras High Court; and the collegium failed to consider  

the various other eligible and suitable advocates practicing before the  

Madras  High  Court  having  different  social  backgrounds.  In  a  

democratic set-up, it is the sharing of the power and all citizens of this  

country  irrespective  of  any  caste  or  creed,  who  are  eligible  and  

suitable for the post, have a right to be considered for appointment.  

The  collegium  has  a  “duty”  to  consider  the  eligible  and  suitable  

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Advocates  belonging to  all  sections  of  the society  to  ensure wider  

representation.  It  may  have  a  larger  social  dimensions  if  certain  

segments of society are not adequately represented on the Bench. The  

ethos  of  pluralistic  democracy  or  diverse  unequal  India  should  be  

humane,  tolerant  and  reminiscent,  yet  balancing  the  contemporary  

realities which in the case are agitated on the lines of caste and their  

inclusion in mainstream of public life. The spirit of equality pervades  

the provisions of the Constitution,  as the main aim of the founders of  

the Constitution was to create an egalitarian society wherein social,  

economic  and  political  justice  prevail  and  equality  of  status  and  

opportunity  are  made available  to  all.  However,  Shri  Prabhakaran,  

learned Senior counsel still insisted that writ petitions be dismissed as  

having become infructuous because of the subsequent developments  

as referred to hereinabove.   

9. Shri  G.E.  Vahanvati,  learned  Attorney  General  of  India  and  

Shri  Mohan  Parasaran,  learned  Solicitor  General  of  India,  have  

contended  that  judicial  review  on  assessing  the  suitability  is  not  

provided for as it is restricted only to the eligibility. As there is no  

challenge to the fact that there had been a proper consultation by the  

Hon’ble  Chief  Justice  of  Madras  High  Court  alongwith  his  other  

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Judges members of the collegium, such judicial review is uncalled for.  

The  writ  petition  is  not  maintainable  and  the  High  Court  has  

committed an error not only in entertaining the writ petition but also  

granting the interim relief.  The writ petitioner has neither applied for  

issuance of Writ of Quo Warranto nor Writ of Certiorari, nor could  

there  be  any  question  of  filing  any  writ  petition  as  only  the  

recommendations for consideration of certain names have been made.  

The allegation that none of the recommendees has any work in court,  

was not correct as the incomes shown by some of them have been  

quite  substantial  indicating  roaring  practice.  The  perpetuation  of  

casteism continues social tyranny of ages. The chart filed by the writ  

petitioner  of  those  recommendees  also  made  it  clear  that  they  

represented  all  the  social  backgrounds equitably  since  upper  caste,  

minority and other social affiliations have been duly represented. No  

advocate has a right to be considered for being appointed as a judge.  

More so, there can be no reservation for a community in selection of a  

judge. Even in service jurisprudence, reservation cannot be claimed at  

the cost of compromise to efficiency of administration. Therefore, the  

petition is liable to be dismissed.   

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10. Shri L.N. Rao, learned Additional Solicitor General appearing  

for  the  Supreme  Court,  has  submitted  that  the  Supreme  Court  

collegium vide Resolution dated 13.2.2014 has returned the whole list  

of advocates as well as of the judicial officers, with intimation to the  

Hon’ble Chief Minister and the Governor of State of Tamil Nadu with  

an observation that the new Chief Justice of Madras High Court as  

and  when  appointed,  would  re-look  into  the  matter  and  send  

recommendations  in  consultation  with  two  senior  most  colleagues  

after taking into consideration all the relevant facts.  Thus, in view of  

the subsequent developments nothing survives to be decided.   

11. The learned Attorney General tried to persuade us to decide the  

other relevant issues also.  However, in view of the aforesaid view  

that  judicial  review does  not  lie  on  assessment  of  suitability  of  a  

recommendee, we are not inclined to deal with it.  But it is needless to  

emphasise  that  the  question  of  an  effective  representation  on  the  

Bench and the qualitative assessment of elevations are not only to be  

governed by the magnitude of the practice of a lawyer or only his  

social  or  legal  background.  These  are  factors  to  be  considered  

alongwith  the  other  qualities  of  intellect  and  character  including  

integrity,  patience,  temper  and  resilience.  The  wisdom  and  legal  

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learning  of  a  particular  individual  coming from a  particular  social  

background  may  have  leanings  and  individual  judges  are  not  un-

afflicted by their notions of social, economic and political philosophy,  

but such matters fall within the realm of suitability to be considered  

by the collegium making recommendations or accepting the same for  

appointment as a Judge. The issue of a broad representation has also  

to be looked into from the point of view that it is necessary to ensure  

that a more representative Bench does not become a less able Bench.  

12. Appointments  cannot  be  exclusively  made from any isolated  

group nor should it be pre-dominated by representing a narrow group.  

Diversity therefore in judicial appointments to pick up the best legally  

trained minds coupled with a qualitative personality, are the guiding  

factors  that  deserve  to  be  observed  uninfluenced  by  mere  

considerations  of  individual  opinions.  It  is  for  this  reason  that  

collective consultative process as enunciated in the aforesaid decisions  

has been held to be an inbuilt mechanism against any arbitrariness.   

13. The proceedings before the Division Bench of the Madras High  

Court that passed the interim orders were noticed by us while vacating  

the same, and the conduct of a sitting Judge raised a negative murmur  

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about  the  maintenance  of  propriety  in  judicial  proceedings.  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. 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. We have already indicated that the cause  

and its contents were beyond the pale of scrutiny in the light of the  

decisions of this Court noted by us and therefore it is not necessary to  

respond to the above-mentioned unusual circumstances.  

14. Additionally, we find that the learned Judge was not made a  

party to the proceedings by the Division Bench of  the High Court  

before  it  nor  have  we accepted  the  oral  prayer  to  that  effect.  The  

exceptional  personal  conduct of the learned Judge 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  

which  can  be  otherwise  disposed  off  in  the  manner  as  indicated  

herein. The learned 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  

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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.  

15. 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 in the  

following words:  

“A  good  Judge  needs  to  have  three  qualities,  each  of  which is disinterestedness.” (of Law and Life and other  things  that  Matter  edited  by  Philip  B.  Kurland,  1965  Pg.75)      With the above observations and dignified reluctance touching  

disapproval,  we  leave  this  matter  for  any  future  milestone  to  be  

covered appropriately.

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16. Three applications have been filed for impleadment, however,  

this Court allowed those applicants only to intervene and make their  

submissions on legal issues without impleading any of them.  

In view thereof, Shri P.H. Parekh, learned senior counsel and  

President  of  Supreme  Court  Bar  Association  duly  assisted  by  Ms.  

Aishwarya  Bhati,  Ms.  Mahalakshmi  Pavani  and  Shri  Chander  

Prakash,  learned  counsel,  have  also  advanced  their  arguments,  on  

various issues, inter-alia, maintainability of the writ petitions.  

17. Be  that  as  it  may,  facts  and  circumstances  of  these  cases  

warrant examination of the issue of maintainability at the threshold.  

In  Mahesh Chandra Gupta (supra), this Court observed:  

“39. 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…….                                  

 41. 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….

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43. 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.

44. At this stage, we may highlight the fact that there   is  a vital  difference  between 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  Supreme  Court   Advocates-on-Record Assn. v. Union of India, (1993) 4   SCC  441   and  Special  Reference  No.  1  of  1998,  Re   (1998) 7 SCC 739..

In  the  present  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.

73. The  concept  of  plurality  of  Judges  in  the   formation of the opinion of the Chief Justice of India 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   

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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.

74…..These  are  the  norms,  apart  from  modalities,   laid down in Supreme Court Advocates-on-Record Assn.   (supra) and also in the judgment in Special  Reference   No.  1  of  1998,  Re.  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.                                          (Emphasis added)

(See also:  C. Ravichandran Iyer v. Justice AM. Bhattacharjee &  

Ors., (1995) 5 SCC 457).

18. In  Supreme Court Advocates-on-Record Assn.  (supra), this  

Court observed:   

“450….. The indication is,  that in the choice of  a   candidate suitable for appointment, the opinion of the   Chief Justice of India should have the greatest weight;   the  selection  should  be  made  as  a  result  of  a   participatory consultative process in which the executive   should have power to act as a mere check on the exercise   of  power by the Chief  Justice  of  India,  to  achieve the   constitutional purpose……

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467….The opinion of the judiciary ‘symbolised by the   view of the Chief Justice of India’, is to be obtained by   consultation with the Chief Justice of India; and it is this   opinion which has primacy.

468. The rule of law envisages the area of discretion   to  be  the  minimum,  requiring  only  the  application  of   known  principles  or  guidelines  to  ensure  non- arbitrariness,  but to that limited extent,  discretion is a   pragmatic  need.  Conferring  discretion  upon  high   functionaries  and,  whenever  feasible,  introducing  the   element  of  plurality by requiring a collective  decision,   are further checks against arbitrariness.  

482……It is, therefore, necessary to spell out clearly   the  limited scope of judicial review in such matters, to   avoid similar situations in future. 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, or of a transfer being made   without  the  recommendation  of  the  Chief  Justice  of   India,  these  matters  are  not  justiciable  on any  other   ground,  including  that  of  bias,  which  in  any  case  is   excluded by  the  element  of  plurality  in  the  process  of   decision-making.

SUMMARY OF THE CONCLUSIONS 486.  A  brief  general  summary  of  the  conclusions   

stated  earlier  in  detail  is  given  for  convenience,  as   under:

…. ….  (3)  In  the  event  of  conflicting  opinions  by  the   

constitutional functionaries, the opinion of the judiciary   ‘symbolised by the view of the Chief  Justice  of  India’,   and formed in the manner indicated, has primacy.

(4)  No  appointment  of  any  Judge  to  the  Supreme   Court  or any High Court  can be made,  unless it  is  in   

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conformity  with  the  opinion  of  the  Chief  Justice  of   India.”                                                (emphasis supplied)

19. In Special Reference No. 1 of 1998 (supra),  this Court held:  

“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  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)

20.  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  

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the  list  sent  by  the  collegium  of  the  Madras  High  Court  without  

further  waiting  its  consideration  by  the  Supreme  Court  collegium.  

Even after the President of India accepts the recommendations and  

warrants of appointment are issued, the Court is competent to quash  

the warrant  as  has been done in this case of  Shri Kumar Padma  

Prasad v. Union of India & Ors., AIR 1992 SC 1213 wherein the  

recommendee was found not possessing eligibility for the elevation to  

the High Court as per Article 217(2).  This case goes to show that that  

even when the President, has appointed a person to a constitutional  

office,  the  qualification  of  that  person  to  hold  that  office  can  be  

examined in quo warranto proceedings and the appointment can be  

quashed.  (See also:  B.R. Kapur v. State of Tamil Nadu & Anr.,  

AIR 2001 SC 3435).

21. In such a fact-situation, the writ petitioners or the members of  

the  Bar  could approach Hon’ble  the  Chief  Justice  of  India;  or  the  

Hon’ble 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.   

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We appreciate the fair stand taken by Shri Prabhakaran, learned  

senior counsel before this Court that suitability cannot be a subject  

matter of judicial review.  

22. In view of the above, the transferred cases stand disposed of.  

The Writ Petition Nos. 375, 1082 and 1119 of 2014 and all matters  

relating  to  this  case  instituted  before  the  Madras  High  Court  are  

disposed of accordingly.  

…………………………….J.                                                                          (Dr. B.S. Chauhan)

…………………………….J.                                                                          (J. Chelameswar)

…………………………….J.                                                                          (M.Y. Eqbal)

New Delhi, March  5, 2014.  

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