FACTS OF THE CASE

The two petitioners, who are advocates of the High Court of Andhra Pradesh, have
filed this petition under Article 32 of the Constitution of India, purportedly in public
interest. This writ petition seeks a writ in the nature of quo warranto, quashing the
appointment of respondent No.3 as a judge of the High Court of Andhra Pradesh and
a writ in the nature of mandamus commanding the Bar Council of Andhra Pradesh to
cancel his enrolment as an advocate.

The quashing of the appointment of respondent No.3 as a judge of the High Court is
sought on the ground that the consultation process leading to his appointment was
vitiated as both the High Court and the Supreme Court Collegia as Courtll as the
Central Government failed to consider two essential facts; one, at the time of his
appointment, a criminal trial was pending in which respondent No.3 was not only an
accused but a proclaimed offender and the other that even at the time of his
enrolment as an advocate he had concealed the criminal proceedings and in the
relevant column of the application for enrolment with the Bar Council, he falsely
stated that there was no pending proceeding against him.

In order to put the petitioners’ challenge to the appointment of respondent No.3 as a

judge of the High Court in the proper perspective,

ISSUES

1.Whether the Writ petition is maintainable ?

2. whether therespondents enrolment is invalid in the light of pending criminal

proceedings?

3.Whether the statement given by responded is false and with intention to fraud ?

4.Whether the order of quashing the appointment of respondent as judge valid ?.

5.Whether the respondent is qualified for re instate his position as judge ?

PROVISION OF LAW
Article 217(1) in The Constitution Of India 1949

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

Article 219 in The Constitution Of India 1949

. Oath or affirmation by Judges of High Courts Every person appointed to be a Judge

of a High Court shall, before he enters upon his office, make and subscribe before
the Governor of the State, or some person appointed in that behalf by him, an oath
or affirmation according to the form set out for the purpose in the Third Schedule

Article 217 in The Constitution Of India 1949

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

(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;

(b) in computing the period during which a person has held judicial office in the
territory of India or been an advocate of High Court, there shall be included any
period before the commencement of this Constitution during which he has held
judicial office in any area which was comprised before the fifteenth day of August,
1947 , within India as defined by the Government of India Act, 1935 , or has been an
advocate of any High Court in any such area, as the case may be

(3) If any question arises as to the age of a Judge of a High Court, the question shall
be decided by the President after consultation with the Chief Justice of India and the
decision of the President shall be final

Article 124 in The Constitution Of India 1949

Establishment and constitution of Supreme Court

(1) There shall be a Supreme Court of India constituting of a Chief Justice of India
and, until Parliament by law prescribes a larger number, of not more than seven
other Judges

(2) Every Judge of the Supreme Court shall be appointed by the President by
warrant under his hand and seal after consultation with such of the Judges of the
Supreme Court and of the High Courts in the States as the President may deem
necessary for the purpose and shall hold office until he attains the age of sixty five
years: Provided that in the case of appointment of a Judge other than the chief
Justice, the chief Justice of India shall always be consulted:

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

(b) a Judge may be removed rom his office in the manner provided in clause ( 4 )

ARGUMENT BY PETITIONER

Mr. Shanti Bhushan, learned senior advocate appearing for the petitioners, on the
other hand, submitted that writ petition raised the issue of inviolability and credibility
of appointment to the high office of the High Court judge. He further submitted that
the Court must not be seen as protecting someone wrongly appointed as a judge of
the High Court for, the people’s faith and trust and confidence in the courts and the
judges presiding over the courts was as much necessary to support the
independence of judiciary as the guarantees under the Constitution and the laws. Mr.
Shanti Bhushan further submitted that in the past also similar issues came before the
Court and the Court never declined to examine the merits of the case and passed
appropriate orders. In support of the submission, he relied upon the decisions of this
Court in

(i) Shri Kumar Padma Prasad v. Union of India

(ii) Shanti Bhushan v. Union of India

(iii) Mahesh Chandra Gupta v. Union of India

The second case cited by Mr. Shanti Bhushan is one which he himself had filed as
public interest litigation, assailing the extension granted to respondent No.2 in that
case as an Additional Judge of the Madras High Court. He relied upon paragraph 25
of the judgment in that case but, Court fail to see anything in that decision that may
serve as an authority on the question of maintainability of a writ petition for quashing
the appointment of a judge after many years of his assuming the office.

HoCourtver, the first and the third case relied upon by Mr. Shanti Bhushan deserve
consideration.

In Shri Kumar Padma Prasad, the Court dealt with a writ petition that was filed
originally before the Gauhati High Court but was later transferred and brought to this
Court. The writ petition was filed at the stage where though the warrant had been
issued under the hand and seal of the President of India, appointing one of the
respondents in that case, namely, K.N. Srivastava as a judge of the Gauhati High
Court, he was still to make and subscribe the oath/affirmation under Article 219 of
the Constitution.

This means that he had not entered upon the office of the judge and the writ petition
was filed before the matter had reached the stage of Article 217 as the person
whose appointment was under challenge was yet to assume the office of the judge.
In that case this Court indeed stepped in to interfere and to stop the appointment
from materializing.

This Court found and held that on the date of issue of the warrant by the President of
India K.N. Srivastava was not qualified to be appointed as a judge of the High Court.
It, accordingly, quashed his appointment as a judge of the Gauhati High Court and
directed the Union of India and the other concerned respondents not to administer
the oath or affirmation under Article 219 of the Constitution to K.N. Srivastava. K.N.
Srivastava was similarly restrained from making and subscribing the oath or
affirmation in terms of Article 219 of the Constitution of India. It is, thus, to be noted
that the Court intervened in the matter before the person concerned had assumed
the office of the judge on the ground that he was not qualified to be appointed as a
judge or, in other words, was not eligible to be appointed as a judge.

ARGUMENT BY RESPONDENT
The fact of the matter, hoCourtver, is that this Crime Case No.229/83 (later re-
numbered as CC No.75/87 and then CC No.167/91) was undeniably pending at the
time of appointment of respondent No.3 as a judge of the High Court and it is
contended on behalf of the petitioners that the failure to take into account the
pendency of the criminal case while his name was recommended by the High Court
Collegium and approval and consent was accorded by the Supreme Court
Colllegium and the Central Government for his appointment as a judge of the High
Court deeply flaCourtd the participatory consultative process as envisaged in Article
217(1) of the Constitution and as developed by the decisions of this Court in
Supreme Court Advocates-on–Record Association and later on in Special Reference
No. 1 of 1998

It is submitted the appointment of the respondent resulting from a consultation

process that failed to take into account an important and relevant fact was
completely illegal and was, therefore, liable to be quashed by a writ of quo warranto.
The respondent had no right to hold the office of a High Court judge and this Court
must step in to correct the grave error committed by his appointment.

It needs to be noted here that the learned Attorney General was requested to
address the Court on the question of maintainability of this writ petition that seeks a
writ, quashing the appointment of a judge of the High Court. The Attorney General
submitted that the writ petition was not maintainable and was liable to be dismissed
summarily. He submitted that the prayer for a writ of quo warranto quashing the
appointment of respondent No.3 was only a camouflage and what the petitioners
really aimed at was the removal of the judge who had been in office for over
tCourtlve years.

The removal of a judge in office, the Attorney maintained, was an issue directly
related to the independence of judiciary that is fundamental to the Constitutional
scheme. The Attorney pointed out that in order to make the judiciary independent
and to make it possible for the judges to discharge their duties without fear or favour
the Constitution firmly secured the tenure of a judge and granted that a judge of any
of the superior courts could only be removed from office on the basis of an
impeachment motion passed by the Parliament as provided under Article 124(4) (in
the case of a judge of the Supreme Court) and Article 217 read with Article 124(4) (in
the case of a judge of the High Court).

The Constitution did not recognize any other mode for the removal of a judge. Any
deviation from the Constitutional process in the garb of quashing the appointment by
a writ of quo warranto would be violative of the scheme of the Constitution and
deleterious for the independence of the judiciary. He further submitted that if the
petitioners thought that the appointment of respondent No.3 as a judge of the Andhra
Pradesh High Court was wrong and there Courtre grounds for his removal from the
office, they could always bring the matter to the notice of the Parliament which alone
was the Constitutional forum competent to remove a judge of the High Court from his
office from any misbehaviour committed either before or after his appointment as a
judge.

He added that in case the Parliament declined to take any action for the removal of
the judge on the petitioner’s complaint the Court was poCourtrless in the matter and
the removal of the judge could not be brought about by the device of quashing his
appointment. He Courtnt so far as to say that in entertaining this writ petition on
merits the Court would be overstepping its Constitutional limits.

.DECISION OF COURT

This writ petition not only without merit but also wanting in bona fides. It is,
accordingly, dismissed with costs of Rs.50,000/- payable by each of the two
petitioners. The cost amount must be deposited in a fund for the Courtlfare of the
employees of the Andhra Pradesh High Court within four Courteks from today.

REASON FOR THE DECISION

The court have carefully gone through the record relating to the appointment of
respondent No. 3 as a judge of the Andhra Pradesh High Court. From the record it is
evident that none of the members of the High Court or the Supreme Court Collegia
was aware of the fact. The State Government was equally unaware of the fact and
so was the Central Government as is evident from the resume prepared by the Law
Ministry as also the IB Report.
This is not all. In 1993, respondent No. 3 was a candidate for the post of the Member
of the Income Tax Appellate Tribunal and in that connection he was intervieCourtd
by a Selection Committee headed by a sitting judge of the Supreme Court. He was
selected for appointment and was issued an appointment letter dated September 8,
1995 as judicial member in the ITAT. The appointment letter was undoubtedly issued
to him only after police verification and nothing was mentioned even at that stage
about any criminal case pending against him. He did not accept the appointment is
another matter altogether.

From all the attending circumstances, it is clear beyond doubt that not only
respondent No. 3 himself but practically no one was aware of the pendency of the
case in which he was named as an accused.

The question, therefore, arises can a fact that is unknown to anyone be said to be
not taken into consideration and can the consultative process faulted as incomplete
for that reason. To our mind, the ansCourtr can only be in the negative. To fault the
consultative process for not taking into account a fact that was not known at that 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.

In case it comes to light that some material facts Courtre withheld by the person
under consideration or suppressed at his behest then that may be a case of fraud
that would vitiate the consultative process and consequently the appointment
resulting from it. But in case there was no suppression and the fact comes to light a
long time after the person appointed has assumed the office of a judge and if the
Members of the two Houses of the Parliament consider the discovered fact
sufficiently serious to constitute misbehaviour and to warrant his removal, then he
may still be removed from office by taking recourse to the provisions of Article
124(4) or Article 217 read with Article 124(4) as the case may be. In case,
hoCourtver, the fact was unknown and there was no suppression of that fact, a writ
of quo warranto would certainly not lie on the plea that the consultative process was
faulty.
In light of the discussion made above, Court are clearly of the view that no case is
made out for issuing a writ of quo warranto quashing the appointment of respondent
No. 3 as the judge of Andhra Pradesh High Court.

The legal issue raised by Mr. Shanti Bhushan is ansCourtred but this matter cannot
be given a proper closure unless Court also say that this writ petition professed to
have been filed in public interest is, in our view, but a ruse to malign respondent
No.3.

In his report to the Chief Justice of India the Chief Justice, Andhra Pradesh High
Court has made the following comment:

The incident occurred almost 30 years ago. The case against Justice Ramana was
withdrawn almost 10 years ago. That it should be raked up now is a little
inexplicable. The case does not seem to have been sensational in any manner
whatsoever so that someone would be following it up. Therefore, it is a little odd that
it should have suddenly surfaced now. It is possible that there is some reason behind
digging up this case, but I am unable to fathom the motive.

What the Chief Justice said, in a highly restrained manner, about the representation
addressed to the Chief Justice of India, applies more to this writ petition. The writ
petition oCourts its origin to a news report published in a Telugu daily newspaper
called ‘Sakshi’ on December 27, 2011. A translated copy of the report is enclosed as
Annexure P-11 to the writ petition. The report is based on incorrect facts and is full of
statements and innuendos that might easily constitute the offence of defamation
leave alone contempt of court. After the news broke out, the petitioners seem to
have collected the record of the criminal case and filed this writ petition on that basis.

The writ petition is drafted with some skill and it presents the facts of the criminal
case in a rather twisted way in an attempt to portray respondent No.3 in bad light.
The way the writ petition is drafted shows that the petitioners are competent and
experienced counsel. Had they examined the records of the criminal case objectively
and honestly, there was no reason for them not to come to the same conclusion as
arrived at in this judgment or as appearing from the report of the Chief Justice,
Andhra Pradesh High Court. It, therefore, appears to us that this writ petition is not a
sincere and honest endeavour to correct something which the petitioners truly
perceive to be wrong but the real intent of this petition is to malign respondent No.3.

It is indeed very important to uphold the “institutional integrity” of the court system as
pointed out in the CVC judgment and as strongly advocated by Mr. Shanti Bhushan,
but it is equally important to protect the court from uncalled for attacks and the
individual judges from unjust infliction of injuries.
 PART 2

CRITICAL COMMENT

The writ petition owes its origin to a news report published in a Telugu daily
newspaper called ‘Sakshi’ on December 27, 2011. A translated copy of the report is
enclosed as Annexure P-11 to the writ petition. The report is based on incorrect facts
and is full of statements and innuendos that might easily constitute the offence of
defamation leave alone contempt of court.

After the news broke out, the petitioners seem to have collected the record of the
criminal case and filed this writ petition on that basis. The writ petition is drafted with
some skill and it presents the facts of the criminal case in a rather twisted way in an
attempt to portray respondent No.3 in bad light.

The way the writ petition is drafted shows that the petitioners are competent and
experienced counsel. Had they examined the records of the criminal case objectively
and honestly, there was no reason for them not to come to the same conclusion as
arrived at in this judgment or as appearing from the report of the Chief Justice,
Andhra Pradesh High Court. It, therefore, appears to us that this writ petition is not a
sincere and honest endeavour to correct something which the petitioners truly
perceive to be wrong but the real intent of this petition is to malign respondent. It is
indeed very important to uphold the “institutional integrity” of the court system as
pointed out in the CVC judgment

From the case, it is clear beyond doubt that not only respondent No. 3 himself but
practically no one was aware of the pendency of the case in which he was named as
an accused.

The question, therefore, arises can a fact that is unknown to anyone be said to be
not taken into consideration and can the consultative process faulted as incomplete
for that reason. To our mind, the answer can only be in the negative. To fault the
consultative process for not taking into account a fact that was not known at that 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.

In case it comes to light that some material facts were withheld by the person under
consideration or suppressed at his behest then that may be a case of fraud that
would vitiate the consultative process and consequently the appointment resulting
from it. But in case there was no suppression and the fact comes to light a long time
after the person appointed has assumed the office of a judge and if the Members of
the two Houses of the Parliament consider the discovered fact sufficiently serious to
constitute misbehaviour and to warrant his removal, then he may still be removed
from office by taking recourse to the provisions of Article 124(4) or Article 217 read
with Article 124(4) as the case may be. In case, however, the fact was unknown and
there was no suppression of that fact, a writ of quo warranto would certainly not lie
on the plea that the consultative process was faulty