The Advocates of the High Court and Supreme Court are considered to be the repository of the judicial functioning and the officer of the Hon’ble Courts. The transparency, fairness and adherence to the Constitutional Principles of the equality in the public employment is also expected to be maintained by an Advocate of High Court. The reciprocal responsibility on the Constitutional functionaries of the High Court is to pass a test of litmus test to the detachment and the impartiality of the judge is expected by the Advocate in due discharge of the duties conducted by the Judge presiding over the court. Thus a self introspection of their own conduct is required to be done by every Judge presiding over the functioning of the Hon’ble High Court. This is a difficult task. It is gratifying that the judgments delivered by the Hon’ble Judges must be enshrined to the flying coulurs reflecting the stoicism, detachment and conviction of the judge in delivering the judgment. It required the courageousness by putting a site every sort of the political affiliation in order to get the future employment at the time of the retirement but contrary to the aforesaid traditions the present system of alleviation of the High Court Judge by the collegiums of the High Court and Supreme Court has been taken to be the discussion by the members of the bar from the time of delivering of the Judgment in 1993 by the Constitutional Bench of the Supreme Court. The common question raising the eyebrow over the appeasement through corruption, favoritism and nepotism in the matter of the selection of the candidature of the Hon’ble Judge has under gone an alarming deterioration in the spirit of the functionary of the statutory responsibility casted upon the collegiums for the selection of the individuals who may enshrined the prestige of the judiciary in the democratic setup. The depreciation to the incensement of the appreciation may lead to the spoiled system of governance. Thus the larger issued of restoring a common man faith in the judicial system and preventing the functioning of the collegiums nearly to a caricature has to be looked after by the stalwards advocates practicing at the higher court to get the constitutional safe guard against the misuse of the discretionary power vested with the aforesaid authority. However, due to the constituents self imposed by the advocates, nobody could have been able to dare the criticism of the judicial system except on the few occasion when the law minister Sankranan out spoken and an advocate name P.D. Dua filed a petition seeking contempt of the law minister of the Central Government for such outstanding remarks which were directly assailing the integrity of the Hon’ble Court in due discharge of their constitutional duty which is increasing rapidly in the alarming proportion due to the lower standard of the people joining the profession and getting themselves being alleviated as the Hon’ble Judge of the Constitutional Court. It was said by Sri Sankaranan then the law minister that the Hon’ble Supreme Court is protecting to the mafia oriented economically stronger citizens in comparison to the cause espouse by a downtrodden by engaging a lawyer within his means and in such cases if the Hon’ble Supreme Court do not dart with the perception of the illegality and inequities committed upon such individuals representing the nation, the same will cast a derogatory image to the functioning of the supreme court and as such the judges are required to take the substance of the injustice committed by the executives and thereby provide the solace to the individuals coming for the redressal of his grievances before the Constitutional post in India.
In stead of having any sort of the check and balance upon the judicial system, the position has further degraded after taking over the power of appointment by the Supreme Court and the same has been given to the collegiums comprising of some of the judges including the Chief Justices of the provinces and the Senior Judges of the High Court and Supreme Court.
The instance which has come across the knowledge of the advocate when one individual posted in the income tax department as the appellate tribunal was chosen was chosen to be the Hon’ble Judge of Allahabad High Court on 18th August 1908 by the President of Indian under her warrant. Justice Dr. Satish Chandra so alleviated was not having any experience of a single day in any one of the High Court nor he could have been said to be performing the duty as the Judge of the Court. It is well understood that the member of the income tax appellate tribunal is not the judge. Thus, a writ of the quo warranto was filed by the Advocate M.C. Gupta who had put a practice of more than 40 years at Allahabad High Court and remained associated with Shanti Bhushan in the matter of the election petition filed by Rajnath against Indira Gandhi. When the High Court by the Judge presided over namely Justice Sushil Harkoli called for the record of Allahabad High Court it was said that the recommendations were send by the Supreme Court Collegium comprising of the Chief Justice of India namely Sri K.G. Balakrishnan, Justice H.S. Kapadia and other senior judges. The Hon’ble Court of Justice Sushil Harkoili passed an order in exercise of the power conferred to the High Court under Article 226 of the Constitution of India to have the Judicial Scrutiny/review of the decision making process of the administrative side of the Allahabad High Court in recommending the name of such person who was not illegible even for the appointment as the Munsif in the subordinate judiciary. It was also said that in case the High Court administrative side may feel the privilege over such recommendation, a single application with such prayer may also be filed which may be scrutinize to entail the jurisdiction of the Allahabad High Court in the matter of the scrutiny of the appointment of the Judge of the Allahabad High Court itself.
Surprisingly the administrative side of the Allahabad High Court instead of providing such information preferred to file the SLP in the Supreme Court. The Bench presided over by the Chief Justice of India K.G. Balakrishnan shockingly not only admitted the appeal but also state the further proceeding in the said case pending before the High Court for which the Hon’ble Supreme Court was having no power to do so as no substantial question of general importance was involved nor it could have been taken out from such a innocuous order. Was it a case in which by any stretch of imagination the Supreme Court could issue notice and that too by the Bench presided over by the C.J.I. (who headed the collegiums which recommended the name of Dr. Satish Chandra). Then the case was transferred to the bench presided over by S.H. Kapadia Senior Judge and the member of the collegiums recommending the name of Dr. Satish Chandra himself. A petition was filed seeking the transfer of the proceedings from Allahabad High Court to Supreme Court under Article 139-A of the Constitution of India. It is another shocking surprise that the S.C. allowed the transfer petition and withdraw the writ petition from the High Court to itself. The petitioner Mahesh Chandra Gupta was summoned to conduct the argument. It was premeditated and predestine of the matter that the fate of the case was predetermined and the writ petition was going to be dismissed. However the arguments were conducted by expression “that qualification prescribed for a post is a rational differentia as promulgated by the equality clause enshrined under Article 14 and such qualification as prescribed under Article 217(2)(b) of the Constitution of India having the eligibility criteria for the selection of some advocate to the Constitutional Post of the Judge of the High Court may not be diluted by saying that the judiciary has not the infallibility to prescribed its own stander over the clause provided therein “An Advocate of the High Court”. It is always taken in the matter of the selection from the time of the Britishers that only such person having competency and high integrity in the professional ethics were regarded to be selected an being alleviated as the Judge of the High Court. Dr. Satish Chandr enrolled as an Advocate on 13.07.1975 has never practice. The present Chief Justice of India H.S. Kapadi observed that the requisite constitutional requirement is not actual practice as an Advocate. He introduced the right of practice may also include such Advocate who have actually not practiced. In paragraph 23 of his Judgment it has been held that “actual practice cannot be read into the qualification provision, Article 217(2)(b). The legal implication of the 1961 Act is that any person whose name is enrolled on the State Bar Council would be regarded as ‘an advocate of the High Court. The substance of Article 217(2)(b) is that it prescribes an eligibility criteria based on ‘right to practice’ and not ‘actual practice’
In concluding part of the Judgment the Supreme Court falls back upon the infallibility of the highest institution i.e. the collegium. It is left to the posterity to pose some uncomfortable questions to the Supreme Court. In a country where Judges appoint themselves can faith in the institutional infallibility be a rule of law? Is the Supreme Court qua the appointment of judges a law unto itself and what about the transparency and accountability? On merit lead to horrendous results if actual practice at the bar is equated with mere enrolment.
The rationale of M.C. Gupta boils down to this: A citizen cannot challenge the appointment of Judge on any ground whatsoever even if he has a bad reputation or even if he has obtained recommendation of collegium by practicing fraud. The judges of High Courts should not have the courage to entertain a writ of Quo Warranto petition under Article 226 of Constitution of India against a judge of high court and if they do so the same would be treated by the members of the collegium of the Supreme Court to be a writ petition questioning their authority and the petition would be transferred to the Supreme Court against all constitutional norms and would be heard by Bench presided by CJI or a senior member of the collegium. For eligibility mere enrolment as an advocate is enough- actual practice at the Bar is not required ‘Suitability’ cannot be questioned because it is in the exclusive domain of the My Lords of the Supreme Court. The citizen has to trust the institutional infallibility of the Supreme Court.