Referring to various SC judgments including the National Judicial Appointments Commission (NJAC) case of 2006, the first bench comprising of Chief Justice Indira Banerjee and Justice P T Asha said, “There is a difference between eligibility and suitability. It is not as if Subramonium Prasad is not eligible. This court cannot sit in an appeal over decision of the collegiums of High Court or Supreme Court.”
The petitioner, Advocate M Radhakrishnan had moved a public interest litigation (PIL) challenging Prasad’s appointment on the basis that he has not practiced as an advocate either in the High Court of Judicature at Madras or its subordinate courts or tribunals functioning within its territorial jurisdiction for a minimum period of ten years.
Noting that though the question of eligibility of the judge in question does not arise, Radhakrishnan argued that since Prasad has never practiced as an advocate in the MHC or its subordinate courts or tribunals, the MHC collegium had no way to assess his performance as an advocate or to appreciate his potentiality to be a Judge of MHC. He further argued that any opinion of the said collegium at best could be described as based on secondary sources. Countering the arguments, Additional Solicitor General G Rajagopalan, cited Section 16 of the Advocates Act, 1961 and said that Justice Prasad was a designated senior advocate of the MHC and has served as the Tamil Nadu’s standing counsel in the Supreme Court.
Earlier, when the case came up for hearing, the Chief Justice agreed to take up the case as she was not part of the collegium that recommended Prasad for elevation.