‘Eligibility’ is based on objective facts. ‘Suitability’ pertains to the realm of an opinion. The appointment of a High Court Judge may only be judicially scrutinized on the ground of ‘eligibility’ or ‘lack of effective consultation’. Judicial review, in this regard, does not lie on the assessment of the ‘suitability’ of the recommendee.
The Hon’ble Supreme Court of India while analyzing and re-affirming this position in Registrar General, High Court of Madras v. R. Gandhi, [2014 (3) SCALE 412] did quote the ‘recent’ case of Mahesh Chandra Gupta v. Union of India, (2009) 8 SCC 273. However, the most recent case approving Mahesh Chandra – M. Manohar Reddy and Anr. v. Union of India, (2013) 3 SCC 99 decided a year ago [February 4, 2013], though very instructive, did not find a mention.
In Manohar Reddy two Advocates of the Hon’ble High Court of Andhra Pradesh filed a Petition under Article 32 of the Constitution seeking a Writ of Quo Warranto quashing the appointment of one Shri N.V. Ramana as a Judge of the High Court. The Petition found its way to the SC, 12 years after Shri N.V. Ramana had already assumed his responsibilities as a Judge of the High Court on June 27, 2000. It came to light though, by virtue of the Petition, that all along the period when Shri N.V. Ramana was recommended to be a Judge and in fact became a Judge, a Criminal Case was ‘undeniably’ pending against him. Admittedly, the ‘eligibility’ of Shri N.V. Ramana was never in question. Mr. Shanti Bhushan, appearing for the Petitioners, contended the consultation that led to the appointment of Shri N.V. Ramana as a Judge was ‘deficient’ for not having taken into consideration that he was accused in a pending Criminal Case.
The SC in Manhohar Reddy held that “to fault the consultative process for not taking into account a fact that was not known at the time would put an impossible burden on the Constitutional Authorities engaged in the consultative process and would introduce a dangerous element of uncertainty in the appointments”. On that view the SC considered that ‘gross irregularities’ had been committed in the proceedings pertaining to the Criminal Case in which Shri N.V. Ramana was accused and that neither Shri N.V. Ramana nor the members of the High Court or the SC collegia, at that time, were aware of such a case and held therefore that a fact that was unknown to everyone could not be taken into consideration to fault a consultative process. Mr. Shanti Bhushan did try to argue that the State Police had submitted the charge-sheet and therefore the State Government must have known about the Criminal Case. But to that the SC issued only the cautionary words that, “The State Government functions in different departments manned by different people and simply because a charge-sheet was submitted by the State Police no conscious knowledge of the fact can be attributed to the State Government.” Eventually, the Writ Petition stood dismissed with a cost of Rs. 50,000 imposed on each of the 2 Advocates who had preferred it.
Shortly after the Judgment, Shri N.V. Ramana became the Acting Chief Justice of the High Court on March 10, 2013. He was elevated as the Chief Justice of the Delhi High Court on September 2, 2013 and as a Judge of the SC on February 17, 2014. His appointment as a Supreme Court Judge is most illuminating. After Hon’ble Justices H.L. Dattu, T.S. Thakur, J.S. Kehar, D. Misra, R. Gogoi & S.A. Bobde – Hon’ble Justice N.V. Ramana is slated to become the 48th Chief Justice of India in the summer of April, 2021.