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To, The Honble Chief Justice of India, And the Honble Judges of the Collegium, Supreme Court of India, New. Delhi

29.07.2013

Dear Sirs, We, once again write to express our deep concern on the issue of appointment of judges to the large number of vacancies in the Madras High Court. You are well aware that several representations have already been sent in this regard voicing the concerns of the Bar about the list of 15 names recommended which do not measure up to any standards. We have had no response in this regard. It may be recalled that the Bar has expressed its strong reservations to the list on the ground that many of the persons recommended do not enjoy good reputation and in fact have dubious reputation. Our fears are now confirmed by the reports that the IB report in respect of three of the persons whose names have been recommended is negative. It is also learnt that the State government has expressed its strong objection to 10 out of the 15 names. It is unfortunate that the repeated demands of the Bar to make the process open and transparent so that the Bar could offer their opinion was ignored. It is true that the judiciary is handicapped as it does not have the machinery to gather intelligence. But it must not be lost sight of that the members of the Bar and the litigants can be an important source of gathering intelligence, the potential of which has never been tapped. This has worked to the detriment of the judiciary. We reliably learn that the senior judges of the Madras High Court did start an earnest exercise of identifying members of the Bar who are regular practitioners and who are known for their professional and personal integrity as well as knowledge of law and efficiency. It is learnt that the assistance of senior members of the Bar was sought

in this regard. Great care was apparently taken in preparing the long list to ensure representation from not only different branches of law but also to ensure social diversity. It is reliably learnt that a list of 30 -35 lawyers was prepared so that the final selection can be made by the Collegium of the Madras High Court from among this pool of lawyers identified after detailed scrutiny by the senior judges of the Madras High Court. The final list of 15 names recommended has come as a shock to everybody as this list reportedly is not part of the identified pool. There is a strong perception among the members of the Bar that the final list emanated elsewhere and not out of the Collegium process thereby casting grave doubts on the legitimacy of the list itself. These are further strengthened by yet another disturbing aspect of this selection viz. the recommendations have been made by an Acting Chief Justice who is awaiting permanent appointment as a Chief Justice of a High Court which is a definite milestone in any judicial officers career. Keeping in mind the trend of supersession of senior judges for appointment as Chief Justices and for elevation to the Supreme Court an Acting Chief Justice is undoubtedly in a vulnerable situation poised delicately at the threshold of the next big advancement in a judges career. Hence he may not be in a position to act independently. It is true that under Article 223 of the Constitution the duties of the office of the Chief Justice can be performed by one of the other Judges of the Court as the President may appoint. In Ashok Tanwar v. State of H.P., (2005) 2 SCC 104, while upholding the recommendation of the Acting Chief Justice in the appointment of the President of the State Consumer Disputes Redressal Forum which is a statutory body it was observed, It is a rule of prudence that the Acting Chief Justice may not take major decisions which otherwise could have been taken by the Chief Justice or which decisions could wait for a Chief Justice. Assuming that some decisions taken by an Acting Chief Justice are required to be modified or corrected, that can be done either on the administrative side or on the judicial side by the High Court or by this Court including the Chief Justice of India, as the case may be. It goes without saying that filling up 15 vacancies of high court judges is a major decision and it has far reaching implication for the entire judicial institution. Further, it is

a decision which is irreversible and a wrong decision cannot be corrected either on the administrative or judicial side. So the crucial issue for consideration is can the ratio of this decision which upheld the powers of an Acting Chief Justice to carry out all administrative and other statutory functions be applicable to the exercise of powers under Article 217 of the Constitution? In Ashok Tanwars case it was held that the term `consultation under s. 16 of the Consumer Protection Act is not the same as `consultation process under Article 217 and hence the Collegium process will not be applicable. In Union of India v. Syad Sarwar Ali, (1998) 9 SCC 426, at page 430, Rule 2 of the High Court Judges (Conditions of Service) Act, 1954 came up for interpretation. In that case it was held that an Acting Chief Justice, who is one appointed under Article 223 of the Constitution cannot be equated with the Chief Justice appointed under Article 217 of the Constitution and hence an Acting Chief Justice is not eligible to get the higher pension of Rs 54,000 per annum prescribed for a Chief Justice. In the light of this judgment it stands to reason to conclude that an Acting Chief Justice is not competent to discharge the constitutional duties under Article 217 in the matter of appointment of judges as the consultation / recommendation can only be with a Chief Justice appointed under article 217 and not an Acting Chief Justice appointed under Article 223. This legal position is further fortified by the fact that Acting Chief Justices are not appointed as chairpersons of Human Rights Commission as the Protection of Human Rights Act stipulates that persons who have been Chief Justices of a High Court can alone be appointed as Chairpersons. Such an interpretation will also stand to reason as a Chief Justice appointed under Article 217 alone can act independently and fearlessly in the discharge of such an onerous constitutional task as making recommendations for appointment as high court judges which has far reaching implications for the judicial institution both higher and sub ordinate judiciary. In the light of the negative reports it is not only prudent but also in the interest of the legitimacy and credibility of the judiciary as well as in the interest of the nation that

the entire list be sent back for fresh consideration by the Collegium of the Madras High Court after a permanent Chief Justice has been appointed.

Thanking you,

Yours sincerely,

(MohanaKrishnan, President )