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The Supreme Court will now hear the petition challenging the recommendation of 12 names made by the Madras High Court collegium for elevation to the Bench.
A Division Bench comprising Justices BS Chauhan and Jasti Chelameswar, while hearing a petition filed by the Madras High Court (Petitioner) against its own order staying the collegium’s recommendations, directed the matter to be transferred to the Supreme Court.
The matter relates to the challenge by Senior Advocate R Gandhi by way of a Public Interest Litigation (PIL) in the High Court assailing the process by which twelve names were recommended for elevation to the Bench. When the matter was being heard by a Division Bench of the High Court, a sitting judge of the HC, Justice CS Karnan had rushed into the courtroom protesting against the collegium’s recommendations. Subsequenty, the Division Bench granted interim relief to Gandhi by directing status quo to be maintained with reference to the recommended names and had posted the matter to January 21.
In its petition, a copy of which is with Bar & Bench, the Petitioner has challenged the order of the Madras High Court and stated that,
“The writ petition is not at all maintainable as it challenges only the suitability or content of the recommendation itself, which, it is well established, cannot be subject to any judicial review. Thus, the inclusion of any person in the list on merits after due consultation, and after following all procedure prescribed by law cannot be challenged.
The Division Bench failed to see that it was improper for it to interfere with the recommendations forwarded by the same High Court and subjecting it to judicial scrutiny thereby. Such interference would amount to destroying the independence of any recommendation made by the Collegium after following the prescribed procedure and would set a dangerous and mischievous precedent in the future.”
Attorney General (AG) Goolam Vahanvati, appearing for the Petitioner, submitted that the collegium’s recommendations cannot be a matter of judicial review and sought for a stay of the High Court’s interim order. He also pointed out the commotion and drama that had taken place with the interference of Justice Karnan. The Court remarked that,
“It is a very serious matter not only for the institution but also for the nation…. If he has made a comment he should be made a party. You understand the implication. Unless he is made party you can’t say anything on his conduct”
The Court after hearing the AG ordered that the High Court’s interim order would remain in abeyance and the matter would stand transferred to the Supreme Court.
Meanwhile, the Bar Council of India had also expressed its dissatisfaction at the Madras High Court order stating in its press release that the High Court was not the proper forum for entertaining such writ petitions.