J. Venkatesan

New Delhi: The Supreme Court on Monday asked Additional Solicitor-General Gopal Subramaniam to state the Centre’s stand on whether consultations by the Chief Justice of India with other judges in the collegium is required when an additional judge of a High Court is made a permanent judge.

A Bench of Justice Arijit Pasayat and Justice P. Sathasivam, hearing a quo warranto petition questioning the appointment of Ashok Kumar as a permanent Judge of the Madras High Court, also asked the ASG to submit a copy of the Memorandum of Procedure evolved by the government relating to the appointment of judges.

Senior lawyer and former Law Minister Shanthi Bhushan and advocate Kamini Jaiswal had questioned the appointment of Mr. Justice Kumar. In July last, the court, without issuing notice, had asked the Centre to file an affidavit giving details of all the appointments of Additional Judges in various High Courts made after 1999.

The Centre filed a brief affidavit stating that from January 1, 1999 to July 31, 2007 “a total of 351 Additional Judges were appointed as permanent judges; that in these cases the Supreme Court collegium was not consulted.”

Mr. Justice Pasayat told senior counsel Anil Divan, appearing for the petitioners, “We wanted to know whether there has been any departure in the procedure in the appointment [of Mr. Justice Kumar]. The whole perception seems to have been changed after the Centre’s affidavit that in all cases there has been no consultation by the CJI with the collegium. We wanted to know whether there has been any departure.”

Mr. Divan replied that the situation had become much worse after the Centre’s affidavit. He said that what was stated by the Centre was incorrect. In April 2003, eight judges were appointed to the Madras High Court and Mr. Kumar was second in seniority. While seven of them were made permanent, the term of Mr. Justice Kumar as an Additional Judge was extended. “Obviously, there was a consultation with the collegium and he was not appointed a permanent judge reportedly because of adverse remarks.”

Mr. Justice Pasayat told Mr. Divan that “as a principle if your contention is accepted then a question will arise whether the proposal from the Chief Justice of the High Court concerned for making permanent an Additional Judge was made with the consultation of the collegium of High Court judges.”

Mr. Divan said, “It is a matter of public interest that the appointment of High Court judges be made according to law as laid down by the Supreme Court itself. It is a matter of grave public concern if the law so laid down is contravened.” The Bench posted the matter for further hearing on April 16.