Judge falls in the realm of "suitability'', and similarly, the process v. C-E]

Constitutional Law of India by H.M. Seervai, First Edn. P. 1012, referred to. 8

2.3. The very purpose for enactment of Article 217(2)(a) ar:id Article 217(2)(b) is to provide for a mix of those from the Bar and those from Service who have the past experience of working as judicial officers/officers in C Tribunals. This was the object behind a policy decision taken in the Chief Justices' Conference of 2002. The object of adding Explanation (aa) is to complement Explanation (a) appended to Article 217(2) and, together, they have liberalised the source of recruitment for 0 appointment to the High Court. Therefore, for eligibility purposes clause (aa) of the Explanation read with sub clause (b) of clause (2) of Article 217 would apply to Members of ITAT, in the matter of computation of the prescribed period for an advocate to be eligible for being E appointed as a High Court Judge. This aspect of "eligibility" has nothing to do with "suitability". (Para 33] [973-C-E] •

3.1. As regards justiciability of appointments under F Article 217(1), the Court in the instant case is concerned with the mechanism for giving effect to the constitutional Justification for judicial review. "Eligibility" is a matter of fact; whereas "suitability" is a matter of opinion. When 'eligibility' under Article 217(2) is put in question, it could fall within the scope of judicial review. In cases involving G lack of "eligibility" writ of quo warranto would certainly lie: one reason being that "eligibility" is not a matter of subjectivity. However, "suitability" or "fitness" of a person to be appointed a High Court Judge - his character, his integrity, his competence and the like - falls H 928 SUPREME COURT REPORTS [2009] 10 S.C.R. A under Article 217(1) (a), and being a matter of opinion, stands excluded from the purview of judicial review. The difference between judicial review and merit review is vital. Consultation forms part of the procedure to test the fitness of a person to be appointed a High Court Judge B under Article 217(1). Once there is consultation, the content of that consultation is beyond the scope of judicial review, though 'lack of effective consultation' could fall within the scope of judicial review. Consequently, judicial review lies only in two cases, C namely, "lack of eligibility" and "lack of effective consultation". It will not lie on the content of consultation. [Para 11, 30 and 31] [950-A-C; 970-G-F; 971-G-H] Supreme Court Advocates-on-Record Association and Ors. v. Union of India 1993 (4) SCC 441 and Re. Special D Reference No. 1 of 1998 (1998) 7 sec 739, relied on. Constitutional Law of India by H.M. Seervai First Edition, p. 1012, referred to. E

3.2. Appointment under Article 217(1), vis-a-vis qualification under Article 217(2), is the function of participatory integrated process in which there is deliberatipn and consultation between the Supreme Court Collegium and the High Court Collegium. In cases of consensus, the question of primacy does not arise. F When a joint venture process is earmarked as a participatory consultative process, the primary aim of which is to reach an agreed decision, one cannot term the Supreme Court Collegium as superior to High Court Collegium. The Supreme Court Collegium does not sit in G appeal over the recommendation of the High Court Collegium. Each Collegium constitutes a participant in the participatory consultative process. The concept of primacy and plurality is in effect primacy of the opinion of the Chief Justice of India formed collectively. The H .. I ' ... J ~ MAHESH CHANDRA GUPTA v. UNION OF INDIA & 929 ORS. concept of plurality of Judges in the formation of the A opinion of the CJI is one of inbuilt checks against the likelihood of arbitrariness or bias. [Para 31) [970-G-H; 971- A-BJ B

3.3. It is important to note that each constitutional functionary involved in the participatory consultative process is given the task of djsch~rging a participatory constitutional function; there is no question of hierarchy between these constitutional functionaries. Ultimately, the object of reading such participatory consultative process c into the constitutional scheme is to limit judicial review restricting it to specified areas by introducing a judicial process in making of appointment(s) to the higher judiciary. These are the norms, apart from modalities, laid down in the case of Supreme Cowt Advocates-on-Record Association* and also in the judgment in Re. Special Reference No. 1 of 1998. [Para 31) [971-E-G] D