IN THE HIGH COURT OF AT BENGALURU W.P.No. 14216 /2016 (GM-PIL)

BETWEEN Sri. M. Veerabhadraiah … Petitioner

AND

High Court of Karnataka, By its Registrar General & Others … Respondents

SYNOPSIS

DATES PARTICULARS

1. 06.10.1993 Hon'ble Apex Court judgment in Supreme Court Advocates on Records Association vs. UOI 1993 (4) SCC 441 Nine Judges – known as second Judges case.

2. 1998 Apex Court judgment in Supreme Court Advocates on Records Association vs. UOI 1993 1998 (7) SCC 739, Nine Judges – known as third Judges case.

3. 16.10.2015 Apex Court Judgment in Supreme Court Advocates on Records Association vs. UOI 2015 AIR SCW 5457 Five Judges – regarding NJAC Act.

4. 16.12.2015 Directions of Supreme Court stipulating memorandum of procedure in the appointment of Judges.

BRIEF FACTS The Hon'ble in the matter of Supreme Court Advocates on record Association cited above have laid down the law and parameters in the matter of selection and appointment of Judges to the High Court. This petition is filed in Public Interest to submit recommendation to the Hon'ble following the law laid down by the Hon'ble Supreme Court and the memorandum of procedure laid down by the Hon'ble Supreme Court. Hence this PIL by a Hon'ble Member of the Bar, Bengaluru.

Bengaluru Date: 15/03/2016 ADVOCATE FOR PETITIONER (M.R. RAJAGOPAL) 2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU (Original Jurisdiction)

W.P.No. 14216/2016 (GM-PIL)

BETWEEN

SRI. M. VEERABHADRAIAH, S/o. Late Mallaiah, Aged about 60 years, Advocate, En.No.KAR/453/1986 Having Office at No.141, 1st Floor, 13th Main, 27th Cross, 3rd Block East, Jayanagar, -560011. … PETITIONER

AND

1. HIGH COURT OF KARNATAKA, By its Registrar General, Bengaluru-560001.

2. THE SUPREME COURT OF INDIA, By its Registrar General, Supreme Court Building, New Delh.

3. UNION OF INDIA, By its Secretary, Ministry of Law & Justice, Shasthri Bhavan, New Delhi -110001.

4. STATE OF KARNATAKA, By its Chief Secretary, , Bengaluru-560001 … RESPONDENTS

MEMORANDUM OF WRIT PETITION UNDER ARTICLE 226 & 227 OF THE

The Petitioner most respectfully submits as follows:

PREAMBLE:

1. The Petitioner, a practicing Advocate and a member of the Bangalore Advocates Association, files this Public Interest Litigation in the matter of selection and appointment of Judges to the High Court of Karnataka, both from the Bar and from service, with a plea to follow the principles laid down by the 3

Nine Judges Bench of Hon'ble Supreme Court of India in the case of S.C. ADVOCATES-ON-RECORD ASSN V. UNION OF INDIA (1993) 4 SCC 441 known as second Judges case and the third Judge case 1998 (7) SCC 739 and the parameters laid down by the constitution Bench of the Hon'ble Supreme Court (headed by Hon'ble Mr. Justice Jagadish Singh Kehre) in W.P.(Civil)No.13/2015 and connected Writ Petitions in the case Judges Bench of Hon'ble Supreme Court of India in the case of S.C. ADVOCATES-ON-RECORD ASSN V. UNION OF INDIA, decided on 16.10.2015, declaring the NJAC Act as unconstitutional and affirming the collegiums system of appointment of Judges laid down in second Judges case.

2. The Petitioner is a practicing Advocate in Karnataka having active practice of 30 years and part of WE, THE PEOPLE OF INDIA, i.e., BHARATH, having solemnly resolved to secure to all its citizens; JUSTICE, SOCIAL, ECONOMY AND POLITICAL; LIBERTY of thought and expression, belief, faith in the Indian Judiciary and its worshipers as guardian of the constitution; EQUALITY of status and of opportunity; and to promote among them all FRATERNITY assuring the dignity of the individual and the Institutions and the unity and integrity of the nation and independence of judiciary to uphold the values of democratic republic namely BHARATH. While the Petitioner works for securing the constitutional rights, is a firm believer in the FUNDAMENTAL DUTIES enshrined Article 51-A of the constitution and endeavor to strives towards excellency in all spheres of individual and collective activity particularly of the constitutional Courts, the upholders of Rule of law in the democracy, so that the nation constantly rises to higher levels of endeavor and achievement of all the democratic Institutions, particularly the Indian Judiciary.

3. The Petitioner being an active member of the Bar had taken up the collective cause of the members of the Bar in Karnataka in the matter of unrighteous designation of Senior Advocates by filing PIL in W.P.No.36789/2014 and taking up the issue before the Hon'ble Supreme Court of India in view of the dismissal of 4

the PIL by this Hon'ble Court. The Petitioner represent the collective voice of the members of the Bar who have keen interest in the honesty and integrity of the judiciary and legitimately expect that the Institution should excel in its sphere of activity by infusing persons of character who will fly the flag of this Institution at its great heights.

4. The Petitioner has no personal interest but files this PIL as collective voice of the large number of Advocates and all those interested in the integrity of the High Court and values for which Indian judiciary stands aloft in the comity of Nations as the world‟s largest republic. This petition is filed with the fond hope that the matter will assist the Hon'ble Chief Justice and the Collegiums to identify proper persons who will adore the seat of Justice to uphold the values of the constitution of India and all the laws. Hence this PIL in the interest of the High Court of Karnataka and the Hon'ble Supreme Court.

BACK GROUND AND BRIEF FACTS NECESSARY:

5. The United Nations General Assembly 1985, endorsed the „Basic Principles on the independence of the judiciary‟ forming part of the universal „Human Rights in the Administration of Justice‟ envisaged by the seventh United Nations Congress at Millan, which provide interalia as under:

”10. Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law. Any method of judicial selection shall safeguard against judicial appointments for improper motives.

13. Promotion of judges, wherever such a system exists, should be based on objective factors, in particular ability, integrity and experience”.

[Human Rights – a compilation of international instrument (1988) at P.267] this is quoted by J.S. 5

Verma (as he then was) in the second Judges case 1993 (4) SCC Page 441 at Page 681 Para 425.

6. Further the Hon'ble Justice J.S. Verma in Para 426 quoted the definition of Rule of Law given by Friedrich A. Hayek in his books: „Road to Serfdom‟ and „Constitution of Liberty‟.

„The rule of law stands for the view that decisions should be made by the application of known principles or laws. In general such decisions will be predictable, and the citizen will know where he is. On the other hand there is what is arbitrary. A therefore unpredictable, the antithesis of a decision taken in accordance with the rule of law. **** If it is contrary to the rule of law that discretionary authority should be given to Government departments or public officers, then there is no rule of law in any modern State. … It is impossible to enunciate the rule of law which has as its basis that no decision can be made unless there is a certain rule to govern the decision.

7. The Constitutional Bench of the Hon'ble Supreme Court of India (headed by Hon'ble Justice Jagadish Singh Kehar) in its judgment dated 16.10.2015 dealing with the constitutional validity of NJAC Act, 2014 and the constitution (99th Amendment) Act, 2014, has quoted the resolution of the seventh conference Chief Justices held in Manila, signed by 32 Chief Justices from the Asia Pacific region. Hon'ble Justice Kehar in Para 92 of his judgment has quoted the Beijing statement of principles of the “Independence of the Judiciary”, signed by 20 Chief Justices in 1997. The statement with reference to “appointment” of Judges is quoted and extracted in the judgment as hereunder:

6

“Appointment of Judges”

11. To enable the judiciary to achieve its objectives and perform its functions, it is essential that judges be chosen on the basis of proven competence, integrity and independence.

12. The mode of appointment of judges must be such as will ensure the appointment of persons who are best qualified for judicial office. It must provide safeguards against improper influences being taken into account so that only persons of competence, integrity and independence are appointed.

13. In the selection of judges there must no discrimination against a person on the basis of race, colour, gender, religion, political or other opinion, national or social origin, marital status, sexual orientation, property, birth or status, expect that a requirement that a candidate for judicial office must be a national of the country concerned shall not be considered discriminatory.

14. The structure of the legal profession, and the sources from which judges are drawn within the legal profession, differ in different societies, the judiciary is a career service; in others, judges are chosen from the practicing profession. Therefore, it is accepted that in different societies, difference procedures and safeguards may be adopted in ensure the proper appointment of judges.

15. In some societies, the appointment of judges, by, with the consent of, or after consultation with a Judicial Services Commission has been seen as a means of ensuring that those chosen judges are appropriate for the purpose. Where a Judicial Services Commission is adopted, it should include representative‟s higher Judiciary and the 7

independent legal profession as a means of ensuring that judicial competence, integrity and independence are maintained.

16. In the absence of a Judicial Services Commission, the procedures for appointment of judges should be clearly defined and formalized and information about them should be available to the public.

17. Promotion of judges must be based on an objective assessment of factors such as competence, integrity, independence and experience.

LAW LAID DOWN BY THE SECOND JUDGES CASE

8. The second Judges case 1993 (4) SCC 441 nine Judges Profounded the concept of primacy of Chief Justice of India, having „participatory consultative process‟. The summary of the majority opinion of five Judges, is given in Para 486 of the judgment as summary of the conclusions. The same is extracted below for ready reference.

SUMMARY OF THE CONCLUSIONS

486. A brief general summary of the conclusions stated earlier in detail is given for convenience, as under:

(1) The process of appointment of Judges to the Supreme Court and the High Courts is an integrated „participatory consultative process‟ for selecting the best and most suitable persons available for appointment: and all the constitutional functionaries must perform this duty collectively with a view primarily to reach an agreed decision, sub-serving the constitutional purpose, so that the occasion of primacy does not arise.

(2) Initiation of the proposal of appointment in the case of the Supreme Court must be by the Chief justice of India, and in the case of a High Court by the Chief Justice of that 8

High Court; and for transfer of a Judge/Chief Justice of a High Court, the proposal has to be initiated by the Chief Justice of India. This is the manner in which proposals for appointments to the Supreme Court and the High Courts as well as for the transfers of Judges/Chief Justices of the High Courts must invariably be made.

(3) In the event of conflicting opinions by the constitutional functionaries, the opinion of the judiciary „symbolized by the view of the Chief Justice of India‟, and formed in the manner indicated, has primacy.

(4) No appointment of any Judge to the Supreme Court or any High Court can be made, unless it is in conformity with the opinion of the Chief Justice of India.

(5) In exceptional cases alone, for stated strong cogent reasons, disclosed to the Chief Justice of India, indicating that the recommended is not suitable for appointment, that appointment recommended by the Chief Justice of India may not be made. However, if the stated reasons are not accepted by the Chief Justice of India and the other Judges of the Supreme Court who have been consulted in the matter. On reiteration of the recommendation by the Chief Justice. The appointment should be made as a healthy convention.

(6) Appointment to the office to the Chief Justice of India should be of the senior most Judge of the Supreme Court considered fit to hold the office.

(7) The opinion of the Chief Justice of India has not mere primacy, but is determinative in the matter of transfers of High Court Judges/Chief Justices.

(8) Consent of the transferred Judge/Chief Justice is not required for either the first any subsequent transfer from one High Court to another.

9

(9) Any transfer made on the recommendation of the Chief Justice of India is not to be deemed to punitive, and such transfer is not justifiable on any ground.

(10) In making all appointments and transfers, the norms indicated must be followed. However, the same do not confer any justifiable right in anyone.

(11) Only limited judicial review on the grounds specified earlier is available in matters of appointments and transfers.

(12) The initial appointments of a Judge can be made to a High Court other than that for which proposal was initiated.

(13) Fixation of the Judge strength in the High Court is justifiable, but only to the extent and in the manner indicated.

(14) The majority opinion in S.P. Gupta v. Union of India insofar as it takes the contrary view relating to the primacy of the role of the Chief Justice of India in matters of appointments and transfers and the justifiability of this mattes as well as in relation to Judge strength, does not commend itself to us as being the correct view. The relevant provisions of the constitution, including the constitutional scheme must now be construed, understood and implemented in the manner indicated herein by us.

487. This summary has to be read along with the earlier part. Wherein in the conclusions are elaborately stated with reasons.

488. The above discussion answers the questions referred and disposes of these matters accordingly.

10

THE THIRD JUDGES CASE – SPECIAL REFERENCE 1 OF 1998

1998 (7) SCC 739 NINE JUDGES BENCH

9. The presidential reference in the matter of appointment of judges to the High Court and the Supreme Court, also reiterated the principles lay down by the second Judges case. Thus on or after the second Judges case in 1993, the appointments of High Court Judges and Supreme Court Judges have been governed by the principles laid down in the second Judges and third Judges case. The relevant answers of the Apex Court to the presidential reference are as follows.

Para 44. The questions posed by the Reference are now answered, but we should emphasize that the answers should be read in conjunction with the body of this opinion:

1. The expression “consultation with the Chief Justice of India” in Articles 217(1) and 222(1) of the Constitution of India requires consultation with a plurality of Judges in the formation of the opinion of the Chief Justice of India. The sole individual opinion of the Chief Justice of India does not constitute “consultation” within the meaning of the said articles.

2. The transfer of puisne Judges is judicially reviewable only to this extent: that the recommendation that has been made by the Chief Justice of India in this behalf has been made in consultation with the four senior most puisne Judges of the Supreme Court and/or that the views of the Chief Justice of the High Court from which the transfer is to be effected and of the Chief Justice of the High Court to which the transfer is to be effected have not been obtained.

3. The Chief Justice of India must make a recommendation to appoint a Judge of the Supreme Court and to transfer a Chief Justice or puisne Judge of a High Court in 11

consultation with the four senior most puisne Judges of the Supreme Court. Insofar as an appointment to the High Court is concerned, the recommendation must be made in consultation with the two senior most puisne Judges of the Supreme Court.

4. The Chief Justice of India is not entitled to act solely in his individual capacity, without consultation with other Judges of the Supreme Court, in respect of materials and information conveyed by the Government of India for non- appointment of a Judge recommended for appointment.

5. The requirement of consultation by the Chief Justice of India with his colleagues who are likely to be conversant with the affairs of the High Court concerned does not refer only to those Judges who have that High Court as a parent High Court. It does not exclude Judges who have occupied the office of a Judge or Chief Justice of that High Court on transfer.

6. “Strong cogent reasons” do not have to be recorded as justification for a departure from the order of seniority in respect of each senior Judge who has been passed over. What has to be recorded is the positive reason for the recommendation.

7. The views of the other Judges consulted should be in writing and should be conveyed to the Government of India by the Chief Justice of India along with his views to the extent set out in the body of this opinion.

8. The Chief Justice of India is obliged to comply with the norms and the requirement of the consultation process, as afore stated, in making his recommendations to the Government of India.

9. Recommendations made by the Chief Justice of India without complying with the norms and requirements of the 12

consultation process, as afore stated, are not binding upon the Government of India.

CONSTITUTION (99TH AMENDMENT) Act, 2014 AND THE NATIONAL JUDICIAL APPOINTMENT COMMISSION Act, 2014.

10. The Parliament amended Articles 124 & 217 of the constitution of India and also inserted Articles 124-A, 124-B and 124-C by the constitution (99th Amendment) Act, 2014. The Parliament also enacted the NJAC Act, 2014 which received the assent of the on 31.12.2014 and the same were brought into force w.e.f. 13.04.2015.

11. The constitution validity of the aforesaid amendments to the constitution and the NJAC Act, 2014 was challenged by the Supreme Court Advocates on record Association under Article 32 of the constitution before the Supreme Court in W.P.(C)No.13/2015. Some other Writ Petitions are also filed by various associations and groups.

12. The constitution Bench of five Judges headed by Hon'ble Justice Jagadish Singh Kehar by its judgment dated 16.10.2015 declared the constitutional amendment and the NJAC Act as unconstitutional and further declared that the appointment of Judges to the Supreme Court and the Judges to the High Courts will be operative as existing prior to the constitution (99th Amendment) Act, 2014 known as “collegium system”. The copy of the order of the Court dated 16.10.2015 passed by the constitution Bench in W.P. (C) No. 13/2015 in case of Supreme Court Advocate-On-Record Association & Others vs. Union of India is produced as ANNEXURE-A. Para 4 of the order which is relevant is extracted below for ready reference.

Para 4

The system of appointment of Judges to the Supreme Court, and Chief Justices and Judges to the High Courts; and transfer of Chief Justices and 13

Judges of the High Courts from one High Court to another, as existing prior to the constitution (99th Amendment) Act, 2014 (called the collegium system) is declared to be operative.

DIRECTIONS OF THE SUPREME COURT TO FINALIZE THE EXISTING MEMORANDUM OF PROCEDURE.

13. The Hon'ble Supreme Court by its order dated 16.12.2015 has given directions to the Central Government to finalize the existing memorandum of procedure by supplementing it taking into consideration the following factors. The said directions of the constitution Bench is reported in AIR 2016 SC 117 in case of Supreme Court Advocate-On-Record Association & Others vs. Union of India, a copy of which is produced as ANNEXURE-B for ready reference. However the factors indicated by the Hon'ble Supreme Court in its order in Para 10 is extracted below for ready reference.

Para 10. In view of the above, the Government of India may finalize the existing Memorandum of Procedure by supplementing it in consultation with the Chief Justice of India. The Chief Justice of India will take a decision based on the unanimous view of the collegium comprising the four senior most puisne Judges of the Supreme Court. They shall take the following factors into consideration:

Eligibility Criteria

The Memorandum of Procedure may indicate the eligibility criteria, such as the minimum age, for the guidance of the collegium (both at the level of High Court and the Supreme Court) for appointment of Judges, after inviting and taking into consideration the views of the State Government and the Government of India (as the case may be) from time to time.

14

Transparency in the appointment process

The eligibility criteria and the procedure as detailed in the Memorandum of Procedure for the appointment of Judges ought to be made available on the website of the Court concerned and on the website of the Department of Justice of the Government of India. The Memorandum of Procedure may provide for an appropriate procedure for minuting the discussions including recording the dissenting opinion of the Judges in the collegium while making provision for the confidentiality of the minutes consistent with the requirement of transparency in the system of appointment of Judges.

Secretariat

In the interest of better management of the system of appointment of Judges, the memorandum of Procedure may provide for the establishment of a Secretariat for each High Court and the Supreme Court and prescribe its functions, duties and responsibilities.

Complaints

The Memorandum of Procedure may provide for an appropriate mechanism and procedure for dealing with complaints against anyone who is being considered for appointment as a Judge.

Miscellaneous

The Memorandum of Procedure may provide for any other matter considered appropriate for ensuring transparency and accountability including interaction with the recommendee(s) by the collegiums of the Supreme Court, without sacrificing the confidentiality of the appointment process.

15

14. It appears that the Government of India has submitted the draft memorandum of procedure as per the directions of the constitution Bench, to the Hon'ble Chief Justice of India.

MEMORANDUM OF PROCEDURE – BROAD GUIDELINES TO THE COLLEGIUM.

15. The broad guidelines which are indicated by the Hon'ble Supreme Court of India in the above order indicates transparency in the appointment process and also provides for devising appropriate mechanism and procedure for dealing with complaints against anyone who is being considered for appointment as a Judge. The memorandum of procedure is for the faithful implementation of the principles laid down in the second Judges case and the third Judges case.

THE EXISTING MEMORANDUM OF PROCEDURE UP TO THE RECENT GUIDELINES INDICATED BY THE SUPREME COURT.

16. It may be useful to advert to the memorandum of procedure for appointment and transfer of Judges, since the parameters laid down are expected to be even stipulated in the new memorandum of procedure that may be finalized and such stipulations cannot be given up as they are very significant in nature. The Para 12 of the said memorandum desires that the full details of the persons recommended, are given in the format ANNEXURE-I and also in ANNEXURE-I(i). The copy of the memorandum of the procedure drawn from the official website of the Dept. of Law & Justice, Govt. of India is produced as ANNEXURE -C for ready reference. Some of the important parameters are relating to the name of practice, reported judgments of Supreme Court and High Court for the last 5 years, in which the recommended persons argued independently (give citations), and also the unreported judgments in which argued independently, association of any political party, whether spouse or any blood relation practicing in the High Court, whether investigated and / or prosecuted for any criminal offence, in case of a judicial Officer, whether 16

committed breach of any conduct – Rule, whether any proceedings were initiated or pending before Bar council. The ANNEXURE-I(ii) prescribes the following:

6. Competence: (i) Equipment in law (ii) Perception (iii) Ability to deal with complex legal problems (iv) Grasping capacity (v) May be treated as: (Excellent, Very Good, Good, Average)

7. Judicial Potential (a) Maturity (b) Poise and equanimity of temperament (c) Does he subscribe to the Constitutional values (d) Capacity to persuade and to be persuaded (e) Patience (f) Team Spirit (g) Objectivity (h) Analytical mind (i) Fairness (May be rated as: Excellent; Very good; Good; Average)

8. Integrity and Character (a) Reputation (i) In legal fraternity (ii) In Society (b) Antecedents

(c) Any affiliation/association which renders Him Unsuitable for the office of a Judge

(d) Any habits or aberrations which render him Unsuitable for the office of a Judge

17

9. Need of the Court of a Judge in any specialized branch Service Judges and Appellate and Original side Judges.

10. Need to maintain the conventional ratio between Bar and Service Judges and Appellate and Original side Judges.

11. Any other matter to be borne in mind having regard to the peculiar circumstances of the court/person under consideration.

SELECTION OF PERSONS FOR APPOINTMENT AS JUDGES IN THE HIGH COURT OF KARNATAKA.

17. It is reliably learned that Hon'ble Chief Justice High Court of Karnataka has initiated the process of selection of eligible persons for appointment as Judges of the High Court of Karnataka, both from the Bar and also from the Service i.e., from the District Judges cadre. It is believed that the number of vacancies of the post of High Court Judges is 62 consisting of 47 permanent Judges and 15 additional Judges. The working strength is 31 and the total number of vacancies are 31 Judges consisting of 20 permanent Judges and 11 additional Judges. A copy of the statement showing the approved strength, working strength and vacancies of Judges in the Supreme Court and the High Court as on 01.03.2016 is produced herewith as ANNEXURE-D. That apart 5 Hon'ble Judges in the High Court are retiring during the year 2016, thereby increasing the total number of vacancies. It may be rather difficult for the remaining Judges who have to share the burden to discharge their onerous duties without compromising the quality in dispensation of justice. It is not known whether Hon'ble Chief Justice will make recommendation to fill up all the vacancies. It may be rather difficult to identify a large number of right persons at once for appointment as Judges. It is left to the wisdom of the Chief Justice and his collegium of Judges since it falls within their discretionary domain. There cannot be any two opinion that all vacancies are required to be filled up, if possible, immediately or in two or three stages, in the near future. 18

NUMBER OF VACANCIES AND NUMBER OF ELIGIBLE ADVOCATES.

18. In view of the large number of posts to be filled up, it is a stupendous task to identify the eligible persons from the Bar i.e., from amongst the practicing Advocates eligible under the provisions of Article 217 of the constitution of India r/w the principles laid down in the second and third Judges case coupled with the memorandum of procedure laid down and to be finalized or even taking into account the existing parameters. It is significant to known that there are three Benches of the High Court of Karnataka, one at Bengaluru known as Principal Bench, and two permanent Benches one at and another at Kalaburagi ().

19. There are more than 5,000 to 7,000 Advocates actively practicing in the High Court, Principal Bench at Bengaluru. Out of them more than 3,000 Advocates who may fulfill eligibility criteria specified in Article 217 (2) constitution of India only by fulfilling the stipulation of at least 10 years practice of as Advocate in the High Court, who may be otherwise not qualified as per the law declared by the Hon'ble Supreme Court of India. So, there may be more than 1000 Advocates in the age group of around 50 years, having more than 20 years of professional experience who may be eligible for consideration.

20. Likewise hundreds of Advocates are available both at Dharwad Bench and the Kalaburagi Bench for the consideration of the Chief Justice and the Collegiums of the High Court, who may legitimately expect that they may not be ignored in the matter of appointment to the High Court.

21. In view of the privileges attached to the office of the Judge, hundreds of eligible Advocates aspire for the post of High Court Judges and legitimately expect the Hon'ble High Court to 19

consider their cases and probably expect the Hon'ble Chief Justice and the collegium Judges to know about them so that they are considered as per the law declared by the Hon'ble Supreme Court of India as per the parameters prescribed by the Hon'ble Supreme Court of India as well as the procedure supplemented by the Government of India and approved by the Hon'ble Chief Justice of India.

ASPIRATION AND AMBITION

22. In view of large number of vacancies, a large number of Advocates have developed self hope and probably feel that their dreams will come true provided their names are considered by the concerned in accordance with the memorandum of procedure and strictly applying the parameters laid down by the Apex Court. The situation that prevails in the judiciary creating a competitive mood amongst the Advocates, eligible or otherwise, has prompted the large number of Advocates to entertain good hope to realize their life ambitions and dreams to become Judges, to serve the judiciary, if opportunity is given. Thus the scenario prevailing in the High Court is very interesting and the selection and appointment of Judges is debated by the Advocates day in and day out but many such aspirants are in dark and do not know the ways and means. However a few Advocates are able to find their names doing rounds which may be on the basis of right information or in the speculative area.

23. It is not known as to how the Hon'ble Chief Justice and the Collegiums Judges identify the eligible persons from the Bar to be recommended for appointment as Judges. They may have to collect information from various sources, may be from other Hon'ble Judges, Senior Advocates etc. All eligible Advocates may not have regularly appeared before the Hon'ble Chief Justice and other two collegiums Judges and as such there may not be sufficient occasion to make the Hon'ble Judges to know about their merit and integrity and other qualities required for the noble job. Many members of the Bar entertain a feeling that 20

in the matters of appointment, by and large there is a preference for Government Advocates, both State and Central as many of them have the opportunity to sit in their Courts and catch their eyes, thereby developing familiarity. Many of them are very good in assisting the Hon'ble Court by not opposing the suggestions of the Bench and in recent times the performance of the Government Law Officers in the Courts are not commendable. There are many Advocates who have specialized in some areas such as Labour, Tax, Criminal, Revenue etc., and as such the appearance of Advocates practicing in the specialized field is only before the Benches before whom such matters are listed and they do not appear before the concerned Judges involved in the process of selection to the post of Judges. Thus information about the eligible persons may have to be gathered from different sources, who have the fair knowledge of proper persons whose cases can be considered. Unfortunately in the Karnataka High Court castism is dominating and the posts are shared by dominant castes and communities. There is a talk in the Bar that major share will go to dominant caste such as Brahmins, Okkaligas and Lingayiths. In addition to that one or two candidates belonging to SC/ST, OBC, certain minorities groups may have the chance of becoming Judges. It is unfortunate that Christians are virtually ignored in the matter of appointment of Judges while other religions like Muslims, Jains, etc., get their quota. The Petitioner firmly believes that in the matter of appointment to the Judges no other considerations except the merit and integrity should alone be taken into consideration so that this Institution functions as per the wishes of the constitution and not as per the whims and fancies any person who suffers from fundamentalism of caste and creeds and religion.

WOMEN ADVOCATES ARE IGNORED.

24. Women are adorned as Shakti in this land of Gods and Goddess. Women are occupying prime place in almost all Institutions, in large numbers in recent time, except in judiciary. There a large 21

number of women Advocates practicing in Karnataka High Court and many of them may be eligible to become Judges in the High Court. In the last 66 years of the Republic, only 2 women Advocates have become Judges in the High Court from the Bar and only 3 women Judges are from service. There is no adequate representation for women Advocates in the appointment of High Court Judges though they are legitimately entitled. Unfortunately women lawyers are not vociferous in demanding their rights, may be due to the differences amongst themselves. It is for the Hon'ble Chief Justice and his Collegium to identify proper women Advocates in the matter of appointment of High Court Judges.

SELECTION FROM SERVICE.

25. There is a convention and practice to appoint Judges to the High Court both from the Bar and Service from the cadre of District Judges. The ratio is different from High Court to High Court. By and large the District Judges are selected and appointed as High Court Judges on the basis of seniority. The experience of the Bar is that the said system has not yielded good results. Many of such Judges from service have failed to cope with the standards required at the High Court level in the matter of dispensation of justice. However a few of Judges from service undoubtedly excelled though many of them failed in the estimation of the Bar, which is described as Judge of the Judges. It is respectfully submitted that the appointment from the Service may not be strictly on seniority and the posts of a High Court Judge being a selection post, selection from amongst the District Judges may be on merit come seniority so that the standard of the Institution is not compromised. There are many brilliant Judges available in the District Judges cadre who deserve selection out of term and many such Judges unfortunately lose the chance of appointment of High Court Judges as they retire from service by the time their turn comes because of various factors such as delay in selection and appointment.

22

SELECTION FROM BAR AND THE SERVICE.

26. While the conventional ratio between Bar and Service Judges is maintained in the Karnataka High Court, there is a convention followed that as and when vacancies are filled up the Judges selected from the Bar are appointed first followed by the Judges from service who are promoted on selection and appointment. It is reliably learnt that attempts are made to appoint Judges from service first as it is easy for their appointments which does not have the complications. But the implication is rather serious and such an attempt will not only violate the convention but also would upset the seniority of Judges from the Bar and the Service. The healthy convention may not be given up in the interest of the judiciary.

27. GROUNDS

a) It is imperative now to appoint Judges to the High Court under Article 217 of the constitution of India as per the law laid down in 3 decisions of the Hon'ble Supreme Court of India, in the matter of Supreme Court Advocates - on Record Association vs. Union of India namely (1) 1993 (4) SCC 441, (2) 1998 (7) SCC 739, (3) 2015 AIR SCW 5457 and as per the memorandum of procedure laid down in the same case reported in AIR 2016 SC 117. The collegium has to ensure the transparency in the appointment process which stipulates that the eligibility criteria and the procedure have to be made available on the website of the Court concerned and on website of the Department of Justice of the Government of India. Thus the Hon'ble High Court is required to make available the eligibility criteria and the procedure for appointment of Judges to the High Court.

b) The High Court is also required to make available the appropriate mechanism and procedure for dealing with 23

complaints against who is being considered for appointment as a Judge. It is the right and duty of the members of the Bar to appraise the collegium about the persons to be recommended for appointment as members of the bar will be more familiar with the personality of such person (Advocate), as knowledge of the collegiums about various factors stipulated for appointment about such person, may not be adequate and facilitate the collegiums Judges to know about such person on all aspects. Thus it is necessary to display the name of persons under consideration for selection and appointment as Judges to enable the Bar to offer their information about candidates. c) The selection from service i.e., from District Judges cadre to High Court Judge post cannot be on mere seniority basis which would undermine the standards of the High Courts. There are many brilliant District Judges who fulfill the requirements stipulated by the judgments of the Hon'ble Supreme Court who are deprived of chance to adorn the seat of justice in the High Court due to the unjust and unfair method of adhering to the method seniority rule even in the matter of appointment to a selection post. Thus it is necessary that merit cum seniority rule is followed to find out the suitability and the eligibility of District Judges to the post of High Court Judge, in place of mere seniority. d) Even the list of District Judges under consideration of the post of High Court Judge may be displayed on website or on the notice board of the Courts to facilitate the Hon'ble Members of the Bar who know about such Judges to offer their views to assist the collegiums in the process of proper selection, which would promote the dignity and integrity and the overall interest of this great Institution. e) The legitimate expectation of women Advocates for consideration for appointment as High Court Judges may be taken cognizance of by the Hon'ble chief Justice and his 24

collegiums to ensure adequate representation for women Judges in the High Court, which will be in tune with the aspirations of Indian Society and the constitution which ensures equality of status and opportunity. Women should not be deprived of opportunity to occupy higher post in Indian judiciary.

28 GROUNDS FOR INTERIM PRAYER

The Hon'ble Supreme Court of India has laid down the law in the matter of selection and appointment of Judges to the High Court, interalia providing for broad memorandum of procedure. The Supreme Court has also stipulated that the eligibility criteria and the procedure for appointment of Judges ought to be have made available on the website of the Court concerned and on the website of the Department of Justice Government of India. The memorandum of procedure also provides for appropriate mechanism for dealing with complaints against anyone who is being considered for appointment as a Judge. It is believed the process of selection in the Karnataka High Court for appointment of High Court Judges is going on and the transparency in selections contemplated by the Hon'ble Apex Court has to be followed. Thus it is necessary to display the names of Hon'ble Advocates whose names are under consideration and also the names of the Hon'ble District Judges under consideration so as to provide an opportunity to the Hon'ble Members of the Bar and all those who have interested in the independence of judiciary, to file their complaints or offer their information about such candidates to facilitate the Hon'ble Chief Justice and the collegiums to make selection of proper persons to be the Judges in the High Court so that the dignity and integrity of the High Court is promoted. Hence it is necessary to grant the interim prayer as prayed for. If the interim prayer is granted it will not prejudice interest of anyone but will help the Hon'ble Chief Justice and the collegiums to receive proper feed back about persons under consideration for appointment of High Court Judges. Hence the balance of convenience is in favour granting the interim prayer. 25

29 PRAYER

Wherefore, it is prayed that this Hon'ble Court may be pleased to issue appropriate direction in the nature of writ of mandamus or any other appropriate writ to the Hon'ble Chief Justice of the Karnataka High Court and the Collegiums:

1) To submit the recommendation of names of eligible Advocates from the Bar and the District Judges in Service, for appointment as High Court Judges in consonance with the law laid down by the Hon'ble Supreme Court (1) 1993 (4) SCC 441, (2) 1998 (7) SCC 739, (3) 2015 AIR SCW 5457 and as per the memorandum of procedure laid down in the same case reported in AIR 2016 SC 117.

2) To display the names of Advocates and District Judges under consideration for recommendation to be appointed as Judges of the Karnataka High Court.

3) To receive the complaints / information about the Advocates and District Judges under consideration for appointment as Judge in the High Court of Karnataka and on consideration of such information submit the recommendation to the Hon'ble Chief Justice of India for appointment.

4) Issue a direction to the Hon'ble Chief Justice and the Collegiums of High Court of Karnataka to provide for equality of status and opportunity to eligible women Advocates practicing in the High Court of Karnataka to become Judges of the High Court of Karnataka. and;

5) To issue such other appropriate writ or directions as this Hon'ble Court deemed fit in the facts and circumstances of the case in the interest of justice.

26

30. INTERIM PRAYER

Further the Petitioner respectfully prays that this Hon'ble Court may be pleased to display the names of Advocates and District Judges under consideration for appointment as High Court Judges to facilitate the members of the Bar and all persons concerned with the dignity and integrity of the judiciary to submit their information about such persons and to direct the Hon'ble chief Justice to submit the recommendation to the Hon'ble Chief Justice of India, only after considering such information, pending disposal of the petition in the interest of justice.

Bengaluru Date: 15/03/2016 ADVOCATE FOR PETITIONER (M.R. RAJAGOPAL)

DRAFTED BY Sri. M.R. RAJAGOPAL

DRAFT SETTLED BY Sri. N. DEVDAS Senior Advocate

Address for Service: Sri. M.R. RAJAGOPAL, Advocate, No.46 & 47, 25th Main, „T‟ Block, Bengaluru – 560085.

27

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

W.P No. 14216/2016 (GM- PIL) BETWEEN SRI. M. VEERABHADRAIAH …PETITIONER

AND THE HIGH COURT OF KARNATAKA & OTHERS …RESPONDENTS

VERIFYING AFFIDAVIT

I, M.Veerabhdraiah S/o late Mallaiah, aged about 60 years, Advocate, having office at No. 141, First Floor, 13th Main, 27th Cross, Jayanagar, 3rd Block East, Bangalore – 560011, do hereby solemnly affirm and state on oath as follows:

1. I state that, I am the petitioner in the above writ petition and I am fully conversant with the facts and circumstances of the case, hence I swearing this affidavit in support of the accompanying writ petition.

2. I further state that, the averments from Para No. 1 to 30 are drafted by my advocate as per my instructions based on the available information. Further ANNEXURE – „A‟ to „D‟ are the true copies of the originals.

3. I further state that, what are all stated above are true and correct to the best of my knowledge, information, and belief, believe them to be true. And no material facts are suppressed.

IDENTIFIED BY ME DEPONENT

ADVOCATE SWORN TO BEFORE ME

BANGALORE DATE: 15/03/2016

No. of Corrections: