The Karnataka High Court recently dismissed a writ petition calling for the appointment of judges to High Courts and the Supreme Court through public advertisements/notifications in lieu of the present Collegium system..In doing so, Justice BV Nagarathna reiterated that the judicial office cannot be equated with ordinary state services in matters of appointment..“,,,, the Office of a Judge of the High Court or Supreme Court is a constitutional position or Office and not a post in the service of the State. Having regard to the scheme of the Constitution and Constitutional Jurisprudence…....the Office of a Judge of Superior Judiciary (High Court and Supreme Court) is not a post to be filled by recruitment or by way of promotion as is the practice visa-a-vis a service under the State. The said invitations are extended to able and competent men and women based on merit irrespective of their class, caste, religion, place of birth or their family background or the professions their parents pursued or pursue…”.The case was brought by three writ petitioners, two advocates and a third who confined to referring to himself as a “common-man“. Advocate Mathews J Nedumpara appeared for the petitioners..However, the “common man’s” petition was dismissed at the outset itself after the judge found that he did not have any locus standi to personally approach the Court in this matter. This was in view of the fact that this petitioner was not an advocate, thereby disqualifying him from being appointed a judge in any scenario..The petitioners’ prayers were oriented towards introducing a process with greater public involvement for the appointment of judges, in line with the procedure generally followed for the appointments to ordinary government posts..To this end, the petitioners had called for issuing public advertisements, notifications, accepting recommendations and references by Bar members, judges, politicians and other stakeholders, shortlisting names and hearing public objections before finalising the names of judges to be appointed to the higher judiciary..It was argued that it is only when such a public process is put in place that the right to equality under Article 14 would be satisfied. The ostensible aim underlying such prayer was to open up opportunities for judgeship to first generation lawyers as well as children from less privileged backgrounds..Effectively, this meant doing away with the present Collegium system of appointments, where decisions concerning the appointment of judges ultimately fall on the senior-most judges of the Supreme Court..Rejecting the petitioners’ prayer, the Court emphasised that the decisive role played by the judiciary in making judicial appointments or transferring judges cannot be so casually disregarded..The Constitution itself hints at the crucial role envisioned for the Judiciary when it comes to the elevation of new judges to the Benches of the higher judiciary..The Second Judges case and the Third Judges case have further laid down that the judiciary should have primacy when it comes to making decisions on appointment and transfer of judges. The present system of Collegium appointments evolved, following the law laid down in the Third Judges case. This legal position stood reaffirmed with the NJAC case as well..In view of this position, the Court noted that,.“… as far as the appointment to the post of a Judge of the High Court or the Supreme Court is concerned, one has to be guided by the provisions of the Constitution, the constitutional conventions and the verdicts of the Hon’ble Supreme Court, which have been integrated into the said constitutional provisions.”.Therefore, the Court dismissed the writ petition, finding that it was blatantly opposed to the law laid down by the Constitution and the Supreme Court. The judge also recorded his disapproval for the apparent attempt at provoking publicity in a matter that has already been settled by precedent..“Before parting with this case, I express with a sense of anguish, petitioner No.s 1 and 2 who are practicing advocates have initiated this writ petition. It is unfortunate that petitioner No.s 1 and 2 who contend that they are eligible and seek to be considered for elevation have filed such a petition. .The filing of this writ petition is ingenious, misconceived and possible filed to attract publicity and with a reckless intention to re-open what is a closed chapter on the aspect of appointment of Judges to High Courts and Supreme Court. I say no more and I refrain from imposing costs.“.Read the Judgment below.
