JUDGMENT : This writ petition is filed by the petitioners seeking the following reliefs : “i. Declare that the reported decision of the Collegium of the Hon'ble High Court of Kerala, recommending the elevation of the respondents 6 to 10 as the Judges of Hon'ble High Court of Kerala is Null and Void being vitiated by extraneous and irrelevant considerations, namely, kinship, and affinity, the respondents 6 to 10 being the Kith and Kin of the former judges of the court, so too of the Advocate General, rather than on merits; ii. Declare that Union of India and the Collegium of the Supreme Court of India is bound to enforce the policy of 1/3rd Judges of the High Courts to be from other High Courts and the initial appointment to be a High Court other than that of the parent High Court of the appointee concerned; iii. To declare that the interest of transparency and fairness requires that the vacancies in the august office of the judge of the High Court of Kerala and for that matter of every High Court in this country is liable to be notified, inviting applications from all eligible candidates, so too the recommendations and references from all stake holders and that an open and transparent selection and appointment be made, rendering any failure thereof to render the selection and appointment void-ab-initio; iv. To issue a writ of prohibition restraining and prohibiting the Union of India, so too the Collegium of the Supreme Court of India from acting upon the recommendations of the Collegium of the Hon'ble High Court of Kerala in so far as the elevation of respondents 6-10 are concerned and further to direct the Collegium to make a fresh recommendations where the ordinary lawyers who have no “Godfathers” too are considered; and v. Such other reliefs which this Hon'ble Court may deem fit and proper in the interest of justice.” 2. Petitioner No.1 is an advocate by profession and allegedly one of the Secretaries of National Lawyers Campaign for Judicial Transparency and Reforms. Petitioner No.2 is a common man. It is stated in the writ petition that, the writ petition is instituted for the enforcement of their fundamental and legal rights. Respondent Nos.1 to 4 are the Chief Justice of the Kerala High Court, the Collegium of Supreme Court of India, Union of India and State of Kerala, respectively. Petitioner No.2 is a common man. It is stated in the writ petition that, the writ petition is instituted for the enforcement of their fundamental and legal rights. Respondent Nos.1 to 4 are the Chief Justice of the Kerala High Court, the Collegium of Supreme Court of India, Union of India and State of Kerala, respectively. The 5th respondent is the Kerala High Court Advocates Association. Respondent Nos.6 to 10 are allegedly recommended by the Collegium of the Kerala High Court for appointment as Judges of the Kerala High Court. 3. The grievance highlighted by the petitioners in this writ petition is that, respondents 6 to 10 are kith and kin of the Judges and former Judges of this Court and a Judge of the Supreme Court of India, and therefore, they are not entitled to be recommended to the post of Judge of the High Court of Kerala. It is also stated that, petitioners though sought to obtain official confirmation of the names reportedly being recommended by the Collegium, was made to understand that the minutes of the Collegium are information held by the 1st respondent in his fiduciary capacity and are not liable to be disclosed. However, the recommendations reportedly made by the Collegium are the talk of the Bar, and the petitioners have no reason to doubt the veracity of the same. It is also contended that, out of the six names recommended by the Collegium, five are lawyers, either kith and kin of sitting or retired Judges/Advocate General or their juniors. First petitioner has also a case that he is qualified to be appointed as a Judge of the High Court, even though his standing at the Bar and other credentials are not disclosed. 4. With the afore-stated facts, petitioners contend that the observation of the Supreme Court in S.P. Gupta's case concerning locus standi was grossly misunderstood, and as a result thereof, the Supreme Court Advocates-on-Record Association invoked the jurisdiction of the Supreme Court under Article 32, even before the ink of S.P. Gupta's case got dry. The aforesaid Association had no locus standi and the petition was not maintainable. But the Attorney General, instead of questioning the locus standi of the Association, conceded to it. It meant the destruction of the very Constitution of India. The aforesaid Association had no locus standi and the petition was not maintainable. But the Attorney General, instead of questioning the locus standi of the Association, conceded to it. It meant the destruction of the very Constitution of India. The very concept of balance of powers, nay, the separation of the legislative, executive and judicial functions; the very foundation on which our democratic edifice is built, was destroyed. The said case, popularly known as Second Judges case, re-wrote the Constitution; it held that the President shall not act on the aid and advice of the democratically elected council of ministers, but on the dictate of the Collegium, a creature of the very judgment itself. 5. It is further contended that, it paved the way for a system unheard in any part of the world, namely, judges appointing themselves. Many so called legal luminaries hailed it as a leading light. Legendary Justice Krishna Iyer was shocked. He was the only soul to criticise the Collegium system where the judges appoint themselves. It is further stated that, Justice Krishna Iyer lamented that the Collegium system will lead to oligarchy, nepotism and corruption, besides questioning its legitimacy. 6. It is further stated that, the bench and bar of the Supreme Court today is the monopoly of a few judicial and legal dynasties. The jurisdiction which the Supreme Court exercises under Article 136 which constitute to be the lion share of the litigation is “Discretionary” even going by the written text of Article 136 of the Constitution. Discretionary is only a synonym of arbitrariness and tyranny and the sweetest of all voice is flattery. In the Supreme Court of India, there are different category of lawyers; Senior Advocates and others. Even among the Senior Advocates, there are many sub-categories. Class A Seniors; Class B Seniors; Class C Seniors and so on. It is also stated that the classification is largely based on their “Face Value”. All senior lawyers without exception not merely praised the Second Judges case which brought into existence the Collegium system but even vied with each other in paying their obeisance to the Second Judges case, one rendered sub silentio and per incuriam; nay, nullity. The senior lawyers who batted for the Collegium found it to be extremely useful to foster their private interest, and they got their kith and kin and juniors as Judges of the High Court. 7. The senior lawyers who batted for the Collegium found it to be extremely useful to foster their private interest, and they got their kith and kin and juniors as Judges of the High Court. 7. It is also stated, a puisne judge of the High Court enjoys the same pay and allowances and facilities as that of the Cabinet Secretary to the Government of India, the highest office an IAS officer who has passed the Civil Services Examinations, one of the most competitive examinations conducted by the UPSC could ever aspire. The office of the judges of the High Courts and the Supreme Court therefore, ought to be open to all, deserving and eligible. It cannot be the exclusive domain of a few families on the Bench and the Bar. It cannot be an exclusive privilege of a few judicial dynasties. 8. It is further contended, in India, even prior to the Second Judges case, the appointments were largely from a few families, and it was all about kinship. The need of the hour was change, greater representation of the sons and daughters of the common man who constitute 95% of the legal fraternity, but there is none to point out this sad truth. It did not even occur to the lawyers who represented the Union of India, much less to the then Attorney General. Since, neither the Attorney General nor those representing the Union of India; so too the Association did bring to the notice of the Supreme Court the real issue that was required to be addressed by the court, namely, total non-representation of the sons and daughters of the common man, who constitute to be 95% of the bar and the near monopoly of the bar and the bench by a few families, the Supreme Court happened to miss the obvious and invented the Collegium system of selection and appointment of Judges. 9. Petitioners also do not spare the lawyers turned politicians, it is submitted, they dominate the Government too, in a manner which is all pervasive. The portfolio of Law & Justice which is concerned with the appointment and transfer of judges is always manned by the Lawyer-politicians. They too therefore, could not find nothing amiss in the system of appointment in prevalence prior to the Second Judges case and thereafter. The Attorney General, therefore, did not advise a review of the Second Judges case. The portfolio of Law & Justice which is concerned with the appointment and transfer of judges is always manned by the Lawyer-politicians. They too therefore, could not find nothing amiss in the system of appointment in prevalence prior to the Second Judges case and thereafter. The Attorney General, therefore, did not advise a review of the Second Judges case. All that was done to undo the great catastrophe which the Second Judges case, from the Constitutional and jurisprudential angle was to merely seek a Presidential reference on the working of the Second Judges case, and not its review. 10. Again, it is stated, the Supreme Court of India became the most powerful court on the planet. The judges and the senior lawyers, used their clout to get their kith and kin and juniors appointed as the Judges of the High Court at the earliest age, which is an assurance to even elevation to the Supreme Court, seniority being considered to be sacrosanct. Further, diversity and representation of all the sections of the bar, nay, society is the only guarantee for a judiciary which could inspire the confidence of the common man. The democratic legitimacy alone could be the real strength of the Indian Judiciary, and once that is lost; everything is lost. The Collegium is antithetical to the very concept of democratic legitimacy. Collegium meant inbreeding, and the inability of the superior policy to protect itself from the disease which it is prone to being divested of the “immunity system” which any species which allows itself to interbreed is divested of. 11. It is also the contention of the petitioners that, the Collegium system of appointment and transfer of judges came to be known as synonym for nepotism leading to the Constitution 99th Amendment Act, which became the law, having received the unanimous approval of both the houses of Parliament (except for Sri. Ram Jethmalani) and more than 21 State Legislatures. However, a few elite lawyers of the Supreme Court used the Advocates on Record Association as a tool to torpedo the will of the people. Ram Jethmalani) and more than 21 State Legislatures. However, a few elite lawyers of the Supreme Court used the Advocates on Record Association as a tool to torpedo the will of the people. It is also contended that, the dismantling of the Collegium system of appointment of judges and its substitution by an open and transparent system where the vacancies are notified and application and references are sought from all stake holders as is the practice in vogue in United Kingdom, Canada and many other countries is one of the main agenda of the National Lawyers Campaign for judicial transparency and reforms, of which the 1st petitioner is one of the Secretaries and is in charge of the Kerala Unit. Other contentions are also raised in order to secure the reliefs as is sought for in the writ petition. 12. I have heard Sri. Mathews J. Nedumpara, learned counsel appearing for the petitioners, Sri. S. Ramesh Babu, learned Senior Counsel along with Sri. Elvin Peter P.J., the instructing counsel for the 1st respondent, and the learned Additional Advocate General, Sri. K.K. Raveendranath. Perused the entire pleadings on record. 13. Learned counsel for the petitioners reiterated the contentions raised in the writ petition. Apart from the same, the prime contention advanced by learned counsel for the petitioners is that, the judgment of the apex court in 'Supreme Court Advocates-on-Record Association and others v. Union of India and others' [ (1993) 4 SCC 441 ] (hereinafter called 'Second Judges case'), and Special Reference No.1 of 1998 [ (1998) 7 SCC 739 ] (hereinafter called 'Third Judges case') are all null and void, since the theory evolved in respect of primacy of the Chief Justice of India has no legal sanctity. It is also submitted that, the basic structure theory enunciated by the Supreme Court in 'Golak Nath's case followed in the subsequent judgments are all per incuriam. It is further submitted that, the judgment of the apex court in 'Supreme Court Advocates-on-Record Association and another v. Union of India' [ (2016) 5 SCC 1 ] is null and void, since the same is rendered by the apex court without any authority of law and overlooking the powers conferred on the Parliament of India. 14. Learned Senior Advocate Sri. 14. Learned Senior Advocate Sri. S. Ramesh Babu submitted that, the question to be considered by this Court in the light of the pleadings put forth by the petitioners is, whether the challenge made in the writ petition is justiciable or not. Learned Senior Counsel has invited my attention to Second Judges case, Third Judges case, and the judgment rendered in 'Mahesh Chandra Gupta v. Union of India and others' [ (2009) 8 SCC 273 ] and the 'Registrar General, High Court of Madras v. R. Gandhi and others' [ (2014) 11 SCC 547 ], in order to drive home the point with respect to the justiciability of the contentions put forth by the petitioners. 15. The issue raised by the petitioners in this writ petition has a chequered judicial/judicious history starting from 'S.P. Gupta v. Union of India' [(1981) Suppl. SCC 87], wherein the majority held that the primacy in the matter of appointment of the judges to the High Courts as well as the Supreme Court remains with the executive. The findings rendered thereunder were revisited in Second Judges case referred to above, consequent to a PIL filed by Subhash Sharma, an Advocate of the Supreme Court and the Supreme Court Advocates-on-Record Association seeking relief of filling up of vacancies of Judges in the Supreme Court and High Courts, a three-Judge Bench of the Supreme Court in 'Subhash Sharma v. Union of India' [(1991) Suppl. (1) SCC 574], taking the view that the correctness of the majority view in S.P. Gupta's case should be considered by a larger Bench. Accordingly, nine-Judge Bench was constituted to examine the two questions viz., “the position of the CJI with reference to primacy and secondly, justiciability of fixation of judge-strength'. On the said two issues in S.P. Gupta case, the Supreme Court by a majority of 4:3 (and by one possible view of Justice Pathak, J's judgment by a majority of 5:2) concluded that among the opinions of the three constitutional functionaries, the opinion of the Chief Justice of India does not enjoy primacy over the other two opinions in the matter of appointment of Judges. 16. 16. That apart, majority of Judges in S.P. Gupta also took the view that in the absence of judicially manageable standards for controlling or guiding the discretion of the Government for the performance of the duty under Article 216 of the Constitution of India, a mandamus could not be issued to secure the fixation of judge-strength for each High Court. It was also held that, the strength of Judges in any High Court was not a matter liable to be scrutinized or revised or increased by judicial review. After examining the pros and cons and assimilating the factual and legal situations, the apex court in Second Judges case has laid down the law by a majority of 7:2, at paragraph 478 held as follows :- (1) what is the meaning of the opinion of the judiciary 'symbolised by the view of the Chief Justice of India'? “478. This opinion has to be formed in a pragmatic manner and past practice based on convention is a safe guide. In matters relating to appointments in the Supreme Court, the opinion given by the Chief justice of India in the consultative process has to be formed taking into account the views of the two senior-most Judges of the Supreme Court. The Chief Justice of India is also expected to ascertain the views of the senior-most Judge of the Supreme Court whose opinion is likely to be significant in adjudging the suitability of the candidate, by reason of the fact that he has come from the same High Court, or otherwise. Article 124(2) is an indication that ascertainment of the views of some other Judges of the Supreme Court is requisite. The object underlying Article 124(2) is achieved in this manner as the Chief Justice of India consults them for the formation of his opinion. This provision in Article 124(2) is the basis for the existing convention which requires the Chief Justice of India to consult some Judges of the Supreme Court before making his recommendation. This ensures that the opinion of the Chief Justice of India is not merely his individual opinion, but an opinion formed collectively by a body of men at the apex level in the judiciary. This ensures that the opinion of the Chief Justice of India is not merely his individual opinion, but an opinion formed collectively by a body of men at the apex level in the judiciary. In matters relating to appointments in the High Courts, the Chief Justice of India is expected to take into account the views of his colleagues in the Supreme Court who are likely to be conversant with the affairs of the, concerned High Court. The Chief Justice of India may also ascertain the views of one or more senior Judges of that High Court whose opinion, according to the Chief Justice of India, is likely to be significant in the formation of his opinion. The opinion of the Chief Justice of the High Court would be entitled to the greatest weight, and the opinion of the other functionaries involved must be given due weight, in the formation of the opinion of the Chief Justice of India. The opinion of the Chief Justice of the High Court must be formed after ascertaining the views of at least the two senior-most Judges of the High Court. The Chief Justice of India, for the formation of his opinion, has to adopt a course which would enable him to discharge his duty objectively to select the best available persons as Judges of the Supreme Court and the High Courts. The ascertainment of the opinion of the other Judges by the Chief Justice of India and the Chief Justice of the High Court, and the expression of their opinion, must be in writing to avoid any ambiguity. (2) The Chief Justice of India can recommend the initial appointment of a person to a High Court other than that for which the proposal was initiated, provided that the constitutional requirements are satisfied. (3) Inter se seniority amongst Judges in their High Court and their combined seniority on all India basis is of admitted significance in the matter of future prospects. Inter se seniority amongst Judges in the Supreme Court, based on the date of appointment, is of similar significance. It is, therefore, reasonable that this aspect is kept in view and given due weight while making appointments from amongst High Court Judges to the Supreme Court. Inter se seniority amongst Judges in the Supreme Court, based on the date of appointment, is of similar significance. It is, therefore, reasonable that this aspect is kept in view and given due weight while making appointments from amongst High Court Judges to the Supreme Court. Unless there be any strong cogent reason to justify a departure, that order of seniority must be maintained between them while making their appointment to the Supreme Court. Apart from recognising the legitimate expectation of the High Court Judges to be considered for appointment to the Supreme Court according to their seniority, this would also lend greater credence to the process of appointment and would avoid any distortion in the seniority between the appointees drawn even from the same High Court. The likelihood of the Supreme Court being deprived of the benefit of the services of some who are considered suitable for appointment, but decline a belated offer would also be prevented. (4) Due consideration of every legitimate expectation in the decision making process is a requirement of the rule of non-arbitrariness and, therefore, this also is a norm to be observed by the Chief Justice of India in recommending appointments to the Supreme Court. Obviously, this factor applies only to those considered suitable and at least equally meritorious by the Chief Justice of India, for appointment to the Supreme Court. Just as a High Court Judge at the time of his initial appointment has the legitimate expectation to become Chief Justice of a High Court in his turn in the ordinary course, he has the legitimate expectation to be considered for appointment to the Supreme Court in his turn, according to his seniority. This legitimate expectation has relevance on the ground of longer experience on the Bench, and is a factor material for determining the suitability of the appointee. Along with other factors, such as, proper representation of all sections of the people from all parts of the country, legitimate expectation of the suitable and equally meritorious Judges to be considered in their turn is a relevant factor for due consideration while making the choice of the most suitable and meritorious amongst them, the outweighing consideration being merit, to select the best available for the apex Court. (5) The opinion of the Chief Justice of India, for the purposes of Articles 124(2) and 217(1), so given, has primacy in the matter of all appointments; and no appointment can be made by the President under these provisions to the Supreme Court and the High Courts, unless it is in conformity with the final opinion of the Chief Justice of India, formed in the manner indicated. (6) The distinction between making an appointment in conformity with the opinion of the Chief Justice of India, and not making an appointment recommended by the Chief Justice of India has to be borne in mind. Even though no appointment can be made unless it is in conformity with the opinion of the Chief Justice of India, yet in an exceptional case, where the facts justify, a recommendee of the Chief Justice of India, if considered unsuitable on the basis of positive material available on record and placed before the Chief Justice of India, may not be appointed except in the situation indicated later. Primacy is in making an appointment; and, when the appointment is not made, the question of primacy does not arise. There may be a certain area, relating to suitability of the candidate, such as his antecedents and personal character, which, at times, consultees, other than the Chief Justice of India, may be in a better position to know. In that area, the opinion of the other consultees is entitled to due weight, and permits non-appointment of the candidate recommended by the Chief Justice of India, except in the situation indicated hereafter. It is only to this limited extent of non-appointment of a recommendee of the Chief Justice of India, on the basis of positive material indicating his appointment to be otherwise unsuitable, that the Chief Justice of India does not have the primacy to persist for appointment of that recommendee except in the situation indicated later. This will ensure composition of the Courts by appointment of only those who are approved of by the Chief Justice of India, which is the real object of the primacy of his opinion and intended to secure the independence of the judiciary and the appointment of the best men available with undoubted credentials. This will ensure composition of the Courts by appointment of only those who are approved of by the Chief Justice of India, which is the real object of the primacy of his opinion and intended to secure the independence of the judiciary and the appointment of the best men available with undoubted credentials. (7) Non-appointment of anyone recommended, on the ground of unsuitability, must be for good reasons, disclosed to the Chief Justice of India to enable him to reconsider and withdraw his recommendation on those considerations. If the Chief Justice of India does not find it necessary to withdraw his recommendation even thereafter, but the other Judges of the Supreme Court who have been consulted in the matter are of the view that it ought to be withdrawn, the non-appointment of that person, for reasons to be recorded, may be permissible in the public interest. If the non-appointment in a rare case, on this ground, turns out to be a mistake, that mistake in the ultimate public interest is less harmful than a wrong appointment. However, if after due consideration of the reasons disclosed to the Chief Justice of India, that recommendation is reiterated by the Chief Justice of India with the unanimous agreement of the Judges of the Supreme Court consulted in the matter, with reasons for not withdrawing the recommendation, then that appointment as a matter of healthy convention ought to be made. (8) Some instances when non-appointment is permitted and justified may be given. Suppose the final opinion of the Chief Justice of India is contrary to the opinion of the senior Judges consulted by the Chief Justice of India and the senior Judges are of the view that the recommendee is unsuitable for stated reasons, which are accepted by the President, then the non-appointment of the candidate recommended by the Chief Justice of India would be permissible. Similarly, when the recommendation is for appointment to a High Court, and the opinion of the Chief Justice of the High Court conflicts with that of the Chief Justice of India, the non-appointment, for valid reasons to be recorded and communicated to the Chief Justice of India would be permissible. If the tenure as a Judge of the candidate is likely to be unduly, short, the appointment may not be made. Non-appointment for reasons of doubtful antecedents relating to personal character and conduct, would also be permissible. If the tenure as a Judge of the candidate is likely to be unduly, short, the appointment may not be made. Non-appointment for reasons of doubtful antecedents relating to personal character and conduct, would also be permissible. The condition of health or any such factor relating to the fitness of the candidate for the office, may also justify non-appointment. (9) In order to ensure effective consultation between all the constitutional functionaries involved in the process, the reasons for disagreement, if any, must be disclosed to all others, to enable reconsideration on that basis. All consultations with everyone involved, including all the Judges consulted, must be in writing and the Chief Justice of the High Court, in the case of appointment to a High Court, and the Chief Justice of India, in all cases, must transmit with his opinion the opinions of all Judges consulted by him, as a part of the record. Expression of opinion in writing is an inbuilt check on exercise of the power, and ensures due circumspection. Exclusion of justiciability, as indicated hereafter, in this sphere should prevent any inhibition against the expression of a free and frank opinion. The final opinion of the Chief Justice of India, given after such effective consultation between the constitutional functionaries, has primacy in the manner indicated. (10) To achieve this purpose, and to give legitimacy and greater credibility to the process of appointment, the process must be initiated by the Chief Justice of India in the case of the Supreme Court, and the Chief Justice of the High Court in the case of the High Courts. This is the general practice prevailing, by convention, followed over the years, and continues to be the general rule even now, after S.P. Gupta. The executive itself has so understood the correct procedure, notwithstanding S.P. Gupta and there is no reason to depart from it when it is in consonance with the concept of the independence of the judiciary. (11) The constitutional functionary meant by the expression 'Governor' in Art. 217(1), is the Governor acting on the 'aid and advice of his Council of Ministers in accordance with Article 163(1) read with Arts. 166(3) and 167. (12) Adherence to a time bound schedule would prevent any undue delay and avoid dilatory methods in the appointment process. (11) The constitutional functionary meant by the expression 'Governor' in Art. 217(1), is the Governor acting on the 'aid and advice of his Council of Ministers in accordance with Article 163(1) read with Arts. 166(3) and 167. (12) Adherence to a time bound schedule would prevent any undue delay and avoid dilatory methods in the appointment process. On initiation of the proposal by the Chief Justice of India or the Chief Justice of the High Court, as the case may be, failure of any other constitutional functionary to express its opinion within the specified period should be construed to mean the deemed agreement of that functionary with the recommendation, and the President is expected to make the appointment in accordance with the final opinion of the Chief Justice of India. In such a situation, after expiry of the specified time within which all the constitutional functionaries are to give their opinion, the Chief Justice of India is expected to request the President to make the appointment without any further delay, the process of consultation being complete. (13) On initiation of the proposal by the Chief Justice of India or the Chief Justice of the High Court, as the case may be, copies thereof should be sent simultaneously to all the other constitutional functionaries involved. Within the period of six weeks from receipt of the same, the other functionaries must convey their opinion to the Chief Justice of India. In case any such functionary disagrees, it should convey its disagreement within that period to the others. The others, if they change their earlier opinion must, within a further period of six weeks, so convey it to the Chief Justice of India. The Chief Justice of India would then form his final opinion and convey it to the President within four weeks, for final action to be taken. It is appropriate that a memorandum of procedure be issued by the Government of India to this effect, after consulting the Chief Justice of India, and with the modification, if any, suggested by the Chief Justice of India to effectuate the purpose. (14) The process of appointment must be initiated well in time to ensure its completion at least one month prior to the date of an anticipated vacancy; and the appointment should be duly announced soon thereafter, to avoid any speculation or uncertainty. (14) The process of appointment must be initiated well in time to ensure its completion at least one month prior to the date of an anticipated vacancy; and the appointment should be duly announced soon thereafter, to avoid any speculation or uncertainty. This schedule should be followed strictly and invariably in the appointment of the Chief Justices of the High Courts and the Chief Justice of India, to avoid the institution being rendered headless for any significant period. In the case of appointment of the Chief Justice of a High Court to the Supreme Court, the appointment of the successor Chief Justice in that High Court should be made ordinarily within one month of the vacancy. (15) Apart from the two well-known departures, appointments to the office of Chief Justice of India have, by convention, been of the senior-most Judge of the Supreme Court considered fit to hold the office; and the proposal is initiated in advance by the outgoing Chief Justice of India. The provision in Article 124(2) enabling consultation with any other Judge is to provide for such consultation, if there be any doubt about the fitness of the senior-most Judge to hold the office, which alone may permit and justify a departure from the long standing convention. For this reason, no other substantive consultative process is involved. There is no reason to depart from the existing convention and, therefore, any further norm for the working of Article 124(2) in the appointment of Chief Justice of India is unnecessary.” 17. So also, in paragraph 486, a brief general summary of the conclusions are stated, which read thus : “486. (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, subserving the constitutional purpose, so that the occasion of primacy does not arise. (2) Initiation of the proposal for 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 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 'symbolised 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 recommendee 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 of India, the appointment should be made as a healthy convention. (6) Appointment to the office of 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 or any subsequent transfer from one High Court to another. (9) Any transfer made on the recommendation of the Chief Justice of India is not to be deemed to be punitive, and such transfer is not justiciable on any ground. (10) In making all appointments and transfers, the norms indicated must be followed. However, the same do not confer any justiciable right in any one. (11) Only limited judicial review on the grounds specified earlier is available in matters of appointments and transfers. (12) The initial appointment of a Judge can be made to a High Court other than that for which the proposal was initiated. (13) Fixation of Judge-strength in the High Courts is justiciable, but only to the extent and in the manner indicated. (12) The initial appointment of a Judge can be made to a High Court other than that for which the proposal was initiated. (13) Fixation of Judge-strength in the High Courts is justiciable, but only to the extent and in the manner indicated. (14) The majority opinion in S.P. Gupta v. Union of India, (1982) 2 SCR 365 ( AIR 1982 SC 149 ), insofar as it takes the contrary view relating to primacy of the role of the Chief Justice of India in matters of appointments and transfers, and the justiciability of these matters 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.” 18. On a reading of the conclusions and the summary, it is clear that, the Supreme Court has made a clear distinction between 'eligibility' and 'suitability', with reference to 'justiciability of the challenge', and the realm of interference of the constitutional courts in the matter of appointment of Judges to the Supreme Court and the High Courts. 19. That apart, it was found that, the appointment of superior Judges is from among persons of mature age with known background and reputation in the legal profession. Again, it is stated in unequivocal terms that the collective wisdom of constitutional functionaries involved in the process of appointing superior Judges is expected to ensure that persons of unimpeachable integrity alone are appointed to these high offices and no doubtful persons gain entry. It is further held that, all the constitutional functionaries involved in the process of appointment of superior judges should be fully alive to the serious implications of their constitutional obligation and be zealous in its discharge in order to ensure that no doubtful appointment can be made. It is further held that, all the constitutional functionaries involved in the process of appointment of superior judges should be fully alive to the serious implications of their constitutional obligation and be zealous in its discharge in order to ensure that no doubtful appointment can be made. It was further held that, the question of primacy of the role of the Chief Justice of India in the context of appointment of Judges in the Supreme Court and the High Courts must be considered in the said backdrop for the proper picture of the constitutional scheme to emerge from the mixture of various hues, to achieve the constitutional purpose of selecting the best available for composition of the Supreme Court and High Courts, so essential to ensure the independence of the judiciary, and thereby, to preserve democracy. Again, it is held that, any construction of the constitutional provisions which conflicts with this constitutional purpose or negates the avowed object has to be eschewed, being opposed to the true meaning and spirit of the Constitution, and therefore, an alien concept. 20. Again, it is held that, the hue of the word 'consultation', when the consultation is with the Chief Justice of India as the head of the Indian Judiciary, for the purpose of composition of higher judiciary, has to be distinguished from the colour the same word 'consultation' may take in the context of the executive associated in that process to assist in the selection of the best available material. The question of 'primacy' was considered elaborately and held that, the said question arises for the purpose of appointment of Judges in the Supreme Court in accordance with Article 124(2) and in the High Courts in accordance with Article 217(1), and transfer of a Judge/Chief Justice from one High Court to another in accordance with Article 222 of the Constitution. Further, the debate on primacy is intended to determine who amongst the constitutional functionaries involved in the integrated process of appointments is best equipped to discharge the greater burden attached to the role of primacy, of making the proper choice; and this debate is not to determine who between them is entitled to greater importance or is to take the winner's prize at the end of the debate, and the task has to be performed with the said perception. In paragraph 439, it is held as follows : “439. In paragraph 439, it is held as follows : “439. The primacy of one constitutional functionary qua the others, who together participate in the performance of this function assumes significance only when they cannot reach an agreed conclusion. The debate is academic when a decision is reached by agreement taking into account the opinion of every one participating together in the process, as primarily intended. The situation of a difference at the end, raising the question of primacy, is best avoided by each constitutional functionary remembering that all of them are participants in a joint venture, the aim of which is to find out and select the most suitable candidate for appointment, after assessing the comparative merit of all those who available. This exercise must be performed as a pious duty to discharge the constitutional obligation imposed collectively on the highest functionaries drawn from the executive and the judiciary, in view of the great significance of these appointments. The common purpose to be achieved, points in the direction that emphasis has to be on the importance of the purpose and not on the comparative importance of the participants working together to achieve the purpose. Attention has to be focussed on the purpose, to enable better appreciation of the significance of the role of each participant, with the consciousness that each of them has some inherent limitation, and it is only collectively that they constitute the selector.” 21. After holding so, it is held that, the discharge of the assigned role by each functionary, viewed in the context of the obligation of each to achieve the common constitutional purpose in the joint venture will help to transcend the concept of primacy between them, and however, if there be any disagreement even then between them, which cannot be ironed out by joint effort, the question of primacy would arise to avoid stalemate, which thus means, primacy should be in him who qualifies to be treated as the 'expert' in the field, and comparatively greater weight to his opinion may then be attached. It is also held that, the aforementioned perception in all the constitutional functionaries associated in the integrated participatory consultative process to achieve the avowed common purpose should ordinarily prevent the situation when the question of primacy arises; and in the exceptional cases when it does arise, the functionary having primacy would do well to respect the view point of others and recall that it implies the carrying by him of a greater burden, and it will ensure better performance of the role with primacy, in the proper spirit, and will make it easier for the others to accept the primacy. 22. In the Second Judges case, the apex court had tracked down the legislative history right from the Government of India Act, 1919 and the Government of India Act, 1935, wherein the power to appoint Judges of the Federal Court and High Courts was at the Majesty's pleasure. After making an elaborate discussion on the aforesaid two Acts, it is held by the apex court that, when the Constitution was being drafted, there was general agreement that the appointment of Judges in the superior judiciary should not be left to the absolute discretion of the executive, and this was the reason for the provision made in the Constitution imposing the obligation to consult the Chief Justice of India and the Chief Justice of the High Court, and further held that, it was done to achieve independence of the Judges of the superior judiciary even at the time of their appointment, instead of confining it only to the provision of security of tenure and other conditions of service after the appointment was made. It is also held that, it was realized that the independence of the judiciary had to be safeguarded not merely by providing security of tenure and other conditions of service after the appointment, but also by preventing the influence of political considerations in making the appointments, if left to the absolute discretion of the executive as the appointing authority. As is laid down by the apex court, it is this reason, which impelled the incorporation of the obligation of consultation with the Chief Justice of India and Chief Justice of High Court in Articles 124(2) and 217(1). As is laid down by the apex court, it is this reason, which impelled the incorporation of the obligation of consultation with the Chief Justice of India and Chief Justice of High Court in Articles 124(2) and 217(1). By holding so, it is held that, this clear departure in the constitutional scheme from the earlier pattern in the Government of India Acts, wherein the appointments were in the absolute discretion of the Crown, is a sure indication that irrespective of the question of primacy of the Chief Justice of India in the matter of appointments, the constitutional provisions cannot be construed to read therein the absolute discretion or primacy of the Government of India to make appointments of its choice, after completing formally the requirement of consultation, if in the opinion given by the consultees of the judiciary is to the contrary. 23. Accordingly, it was held that, the departure made in the Constitution of India from the earlier scheme under the Government of India Acts, is itself a strong circumstance to negative the view in the constitutional scheme primacy is given to the opinion of the Government of India, notwithstanding the mandate of obligatory consultation with the Chief Justice of India in all cases, and also with the Chief Justice of the High Court in the case of appointment to a High Court. The consideration must, therefore, be confined to the comparative weight to be attached to the opinion of the Chief Justice of India vis-a-vis the opinion of the other consultees and the Central Government. It was taking into account the aforesaid aspects and various other judicial aspects, and formalities followed in the United Kingdom that the conclusions were made by the apex court. 24. After the Second Judges case, a Memorandum of Procedure was adopted and the appointment of the Judges of the Supreme Court as well as the High Courts were done by following the procedure adopted thereunder. Therefore, for the past more than 2 1/2 decades, a practice was being followed in the matter of appointment of Judges to the Supreme Court and the High Courts, the same has become a convention, as is said by the apex court in the subsequent judgments referred to above. 25. Therefore, for the past more than 2 1/2 decades, a practice was being followed in the matter of appointment of Judges to the Supreme Court and the High Courts, the same has become a convention, as is said by the apex court in the subsequent judgments referred to above. 25. Matters being so, a Reference was sought by the President of India, referred to above as Third Judges case, wherein, it is held that, judicial review in the case of an appointment or a recommended appointment, to the Supreme Court or a High Court is, therefore, available if the recommendation concerned is not a decision of the Chief Justice of India and his senior-most colleagues, which is a constitutional requisite. They number four in the case of a recommendation for appointment to the Supreme Court and two in the case of a recommendation for appointment to a High Court, and judicial review is also available if, in making the decision, the views of the senior-most Supreme Court Judge who comes from the High Court of the proposed appointee to the Supreme Court, have not been taken into account. Similarly, if in connection with an appointment or a recommended appointment to a High Court, the views of the Chief Justice and senior Judges of the High Court, as afore-stated, and of Supreme Court Judges knowledgeable about that High Court have not been sought or considered by the Chief Justice of India, and his two senior-most puisne Judges, judicial review is available. Judicial review is also available when the appointee is found, to lack eligibility. 26. The issues raised in the reference with respect to the law laid down in Second Judges case were elaborately, distinctively and pin-pointedly considered in Special Reference No.1 of 1998, and the Judges of the Supreme Court unanimously answered the reference, upholding the views expressed in Second Judges case, and it was further held that, the successive Chief Justice of India shall henceforth act in accordance with the Second Judges case and the opinion rendered in the Special Reference. 27. Again, the question of judicial review and justiciability was considered in Mahesh Chandra Gupta's case (supra). Taking into account the various constitutional provisions, it was held that the appointment of a Judge is an executive function of the President. Article 217(1) prescribes the constitutional requirement of “consultation”. 27. Again, the question of judicial review and justiciability was considered in Mahesh Chandra Gupta's case (supra). Taking into account the various constitutional provisions, it was held that the appointment of a Judge is an executive function of the President. Article 217(1) prescribes the constitutional requirement of “consultation”. Fitness of a person to be appointed as Judge of a High Court is evaluated in the consultation process. Once this dichotomy is kept in mind, then, it becomes clear that evaluation of the worth and merit of a person is a matter entirely different from eligibility of a candidate for elevation. Article 217(2), therefore, prescribes a threshold limit or an entry point for a person to become qualified to be a High Court Judge whereas Article 217(1) provides for a procedure to be followed before a person could be appointed as a High Court Judge, which procedure is designed to test the fitness of a person to be so appointed: his character, his integrity, his competence, his knowledge and the like. 28. Therefore, it was further held that, Article 217(1) and Article 217(2) of the Constitution of India operate in different spheres. Article 217(1) answers the question as to who “should be elevated”, whereas Article 217(2) deals with the question as to who “could be elevated”. Enrolment of an advocate under the 1961 Act comes in the category of who “could be elevated” whereas the number of years of actual practise put in by a person, which is a significant factor, comes in the category as to who “should be elevated”. It is further held in paragraphs 43 and 44 as follows : “43. One more aspect needs to be highlighted. “Eligibility” is an objective factor. Who could be elevated is specifically answered by Article 217(2). When “eligibility” is put in question, it could fall within the scope of judicial review. However, the question as to who should be elevated, which essentially involves the aspect of “suitability”, stands excluded from the purview of judicial review. 44. At this stage, we may highlight the fact that there is a vital difference between judicial review and merit review. Consultation, as stated above, forms part of the procedure to test the fitness of a person to be appointed a High Court Judge under Article 217(1). 44. At this stage, we may highlight the fact that there is a vital difference between judicial review and merit review. Consultation, as stated above, forms part of the procedure to test the fitness of a person to be appointed a High Court Judge 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. This is the basic ratio of the judgment of the Constitutional Bench of this Court in Supreme Court Advocates-on-Record Assn. and Special Reference No.1 of 1998, Re.” 29. After a detailed consideration of the entire gamut of the issue, the justiciability of appointments under Article 217(1) was considered taking into account the words of two jurists viz., Mark Elliott and Jowett respectively as follows : “The overreaching constitutional justification for judicial review, the vindication of the rule of law, remains constant, but mechanisms for giving effect to that justification vary”. “Judicial review must ultimately be justified by constitutional principle”. 30. Bearing in mind the aforesaid legal principles, it is held that, “eligibility” is a matter of fact, whereas “suitability” is a matter of opinion. In cases involving 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 are matters of opinion. It was further held in paragraphs 73 and 74 as follows : “73. The concept of plurality of Judges in the formation of the opinion of the Chief Justice of India is one of inbuilt checks against the likelihood of arbitrariness or bias. At this stage, we reiterate that “lack of eligibility” as also “lack of effective consultation” would certainly fall in the realm of judicial review. However, when we are earmarking a joint venture process 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 appeal over the recommendation of the High Court Collegium. Each Collegium constitutes a participant in the participatory consultative process. The Supreme Court Collegium does not sit in 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 discharge of the assigned role by each functionary helps to transcend the concept of primacy between them. 74. It is important to note that each constitutional functionary involved in the participatory consultative process is given the task of discharging a participatory constitutional function; there is no question of hierarchy between these constitutional functionaries. Ultimately, the object of reading such participatory consultative process into the constitutional scheme is to limit judicial review restricting it to specified areas by introducing a judicial process in making of appointments to the higher judiciary. These are the norms, apart from modalities, laid down in Supreme Court Advocates-on-Record Assn. and also in the judgment in Special Reference No.1 of 1998, Re. Consequently, judicial review lies only in two cases, namely, “lack of eligibility” and “lack of effective consultation”. It will not lie on the content of consultation.” The apex court has also taken into account the objectivity of the issues and the law laid down in the Second and Third Judges cases also. 31. The issue was again considered by the apex court in 'Registrar General, High Court of Madras'(supra), taking into account the findings rendered by the apex court in the Second and Third Judges cases and 'Mahesh Chandra Gupta' and held that, judicial review does not lie against assessment of suitability of a recommendee. It was also held that, the question of an effective representation on the Bench and qualitative assessment of elevations are not only to be governed by the magnitude of the practice of a lawyer or only his social or legal background, but these are factors to be considered along with other qualities of intellect and character including integrity, patience, temper and resilience. The wisdom and legal learning of a particular individual coming from a particular social background may have leanings and individual Judges are not un-afflicted by their notions of social, economic and political philosophy, but such matters fall within the realm of suitability to be considered by the Collegium making recommendations or accepting the same for appointment as a Judge. The wisdom and legal learning of a particular individual coming from a particular social background may have leanings and individual Judges are not un-afflicted by their notions of social, economic and political philosophy, but such matters fall within the realm of suitability to be considered by the Collegium making recommendations or accepting the same for appointment as a Judge. The issue of a broad representation has also to be looked into from the point of view that it is necessary to ensure that a more representative Bench does not become a less able Bench. 32. Again, it is held that, diversity therefore, in judicial appointments to pick up the best legally trained minds coupled with a qualitative personality, are the guiding factors that deserve to be observed uninfluenced by mere considerations of individual opinions, and it is for this reason that collective consultative process as enunciated in the aforesaid decisions has been held to be an inbuilt mechanism against any arbitrariness. Thereafter, it is held as follows in paragraph 25 : “25. Thus, it is apparent that judicial review is permissible only on assessment of eligibility and not on suitability. It is not a case where the writ petitioners could not wait till the maturity of the cause i.e. decision of the Collegium of this Court. They took a premature step by filing writ petitions seeking a direction to the Union of India to return the list sent by the Collegium of the Madras High Court without further waiting its consideration by the Supreme Court Collegium. Even after the President of India accepts the recommendations and warrants of appointment are issued, the Court is competent to quash the warrant as has been done in Kumar Padma Prasad v. Union of India, wherein the recommendee was found not possessing eligibility for the elevation to the High Court as per Article 217(2). This case goes to show that even when the President has appointed a person to a constitutional office, the qualification of that person to hold that office can be examined in quo warranto proceedings and the appointment can be quashed. (See also B.R. Kapur v. State of T.N.).” 33. Again, the issue was considered in the 'Supreme Court Advocates-on-Record Association and another v. Union of India' (hereinafter called, Fourth Judges case, popularly known as NJAC case [ (2016) 5 SCC 1 ]. (See also B.R. Kapur v. State of T.N.).” 33. Again, the issue was considered in the 'Supreme Court Advocates-on-Record Association and another v. Union of India' (hereinafter called, Fourth Judges case, popularly known as NJAC case [ (2016) 5 SCC 1 ]. The majority, by 4:1 held that, reference to a Bench of co-equal strength of nine or a larger Bench is not required, since the findings rendered in the Second and Third Judges cases were found, absolutely in order. 34. The Fourth Judges case was considered in the light of the amendment made to Article 124 of the Constitution of India, and consequential amendment made to Article 217 by introducing the National Judicial Appointments Commission consisting of the Chief Justice of India, two other senior Judges of the Supreme Court next to the Chief Justice of India, the Union Minister in charge of the Law and Justice and two eminent persons to be nominated by the committee consisting of the Prime Minister, the Chief Justice of India and the Leader of Opposition in the House of the People or where there is no such Leader of Opposition, then, the Leader of single largest Opposition Party in the House of the People, as Chairperson, members ex officio and members respectively. Other provisions are also introduced thereunder. 35. Anyhow, the apex court after elaborate consideration of the matter has struck down the 99th Amendment made to Article 124, holding that the amendment is interference with basic structure of the Constitution of India. While holding so, it was also held that, once the constitutional validity of Article 124-A(1) is held to be unsustainable, the impugned constitutional amendment as well as the NJAC Act would be rendered a nullity. In paragraph 408, the effect of striking down the impugned constitutional amendment was considered and held as follows : “408. Would the amended provisions of the Constitution revive, if the impugned constitutional amendment was to be set aside as being violative of the “basic structure” of the Constitution? It would be relevant to mention that the instant issue was not adverted to by the learned counsel for the petitioners, possibly on the assumption that if on a consideration of the present controversy, this Court would strike down the Constitution (99th Amendment) Act, then Articles 124, 127, 128, 217, 222, 224, 224-A and 231, as they existed prior to the impugned Amendment, would revive. And on such revival, the judgments rendered in the Second and the Third Judges cases would again regulate selections and appointments as also transfer of Judges of the higher judiciary.” 36. Further, it is held in paragraph 415 as follows: “For the reasons recorded herein-above, we are of the view that in case of setting aside of the impugned Constitution (99th Amendment) Act, the provisions of the Constitution sought to be amended thereby would automatically revive”. It was further held in paragraph 418 that the National Judicial Appointments Commission Act, 2014 inter alia emanates from Article 124-C, which has no independent existence in the absence of NJAC, constituted under Article 124-A(1) and accordingly the NJAC Act, 2014 was also struck down. It was also held in the concurring judgment of Justice Madan B. Lokur that Sections 5, 6 and 8 of the NJAC Act are ultra vires the provisions of the Constitution. 37. Learned Additional Advocate General appearing for the State supported the arguments advanced by learned Senior Counsel for the 1st respondent, and that apart, my attention is invited to the judgment of a Division Bench of the High Court of Delhi in 'R.P. Luthra v. Union of India and another' dated 01.03.2017 [www.LiveLaw.in], wherein also, a similar question was considered, and taking into account the entire legal issues in Second, Third and Fourth Judges cases, held that, judicial review is not possible in the matter of recommendation made by the collegium to the apex court, and the High Courts, except in the matter of eligibility of the candidates. 38. Taking into account the proposition of law laid down by the apex court in the afore-quoted judgments, I am of the considered view that, the issues with respect to the justiciability, and the judicial review in the subject matter are set at naught. So also, by virtue of the imperative temperament of Article 141 of the Constitution, the law declared by the Apex Court is binding on all courts within the territory of India. 39. Yet another pinpointed argument advanced by learned Senior Counsel for the High Court is that, the affidavit accompanying the writ petition is not verified in accordance with the requirement under law, and therefore, the writ petition on the said sole ground is liable to be dismissed. 39. Yet another pinpointed argument advanced by learned Senior Counsel for the High Court is that, the affidavit accompanying the writ petition is not verified in accordance with the requirement under law, and therefore, the writ petition on the said sole ground is liable to be dismissed. The verification in the affidavit accompanying the writ petition is as follows: “All the facts stated above are true and correct to the best of my knowledge, information and belief”. According to the learned Senior Counsel, the verification is done in regard to the contents of the affidavit alone, which will not suffice the requirement in accordance with Rule 147 of the Kerala High Court Rules, which stipulates that, the application/petition shall be accompanied by an affidavit verifying the facts relied on. Rule 82 of the High Court Rules is also relevant to the context, which read thus : “Every affidavit shall clearly express how much is a statement of the deponent's knowledge and how much is statement of his belief, as in Form No.7. The grounds of belief must be stated with sufficient particularity to enable the Court to judge whether it would be safe to act on the dependent's belief.” Rule 154 of the High Court Rules is also relevant, which read thus : “154. Proof of facts and documents.--Proof of facts and documents shall be tendered by affidavit.” 40. Learned Senior Counsel in this context has also invited my attention to a Division Bench judgment of this Court in 'Sajan Mannali v. Hon'ble Chief Justice' [1994 KHC 69], where, it was held that the facts stated and the allegations made in accordance to law in the writ petition is not verified, which is in turn fatal to the writ petition. 41. On evaluation of the facts, legal circumstances and the proposition of law laid down by the apex court, I am of the considered view that the arguments advanced by learned counsel for the petitioners are not entitled to be considered being not justiciable. Furthermore, nowhere in the writ petition, petitioners have a case that the candidates recommended by the High Court are ineligible or not suitable. The sole contention is that, they are kith and kin of either Judges, former Judges, Advocate General etc. etc. Furthermore, nowhere in the writ petition, petitioners have a case that the candidates recommended by the High Court are ineligible or not suitable. The sole contention is that, they are kith and kin of either Judges, former Judges, Advocate General etc. etc. Even assuming that, it is so, that by itself is not an ineligibility, or affecting suitability for consideration, if the candidates are eligible and suitable in accordance with law, and the proposition of law laid down by the apex court in the afore-quoted judgments respectively. 42. Even though learned counsel for the petitioners strenuously contended that the names of the candidates should have been published by the High Court in order to have transparency, I am of the firm and considered opinion that, confidentiality principles come into play to have the best result, in the selection of candidates, and the consultation to be done. It is also an established practice and convention among the consultees, also, on the basis of memorandum of procedure in vogue. So also the communications exchanged by and between the consultees are privileged, and maintaining confidentiality until the warrant of appointment is issued by the President of India and communicated and published in accordance with law, or the candidature is rejected. This is also a well accepted practice and convention meant to be followed till such time any other procedure is finalised by the apex court consequential to the law laid down in the Fourth Judges case. The said procedure is also, not alien to law, since it is accepted, agreements can be made to maintain secrecy and confidentiality. By saying so, I intend to convey that the procedure and practice in the selection of Judges maintaining confidentiality is only a legalistic approach, and is not having any ramification affecting any legal rights enjoyed by the petitioners. That being so, the relief sought on account of the same is also not entertainable being not justiciable. Therefore, the High Court is not bound under law, or rather empowered to publish the names of the candidates in the public domain. That being so, the relief sought on account of the same is also not entertainable being not justiciable. Therefore, the High Court is not bound under law, or rather empowered to publish the names of the candidates in the public domain. Moreover, as is noticeable, the contention advanced by learned counsel for the petitioners, based on the principles of per incuriam and nullity in respect of the judgments rendered by the apex court in the afore-quoted judgments are not legal and proper to be considered by this court, since it is the law declared by the Supreme Court, which is binding on all courts. It is more so for the reason, except certain arguments advanced by the learned counsel for the petitioners, there is no pleading supported by any legal or factual reasons worth appreciable. Furthermore, even though the powers exercised by the High Court is not subordinate to the Supreme Court, the Supreme Court in the hierarchy of the judiciary in India, is the superior court, and viewed in that circumstances, the challenge with respect to the proposition of law laid down by the apex court cannot be made a subject matter of challenge in a writ petition filed before a High Court. 43. Above all, the proposition of law laid down in Second Judges Case is founded on Articles 124 and 217 of the Constitution, by providing a meaningful, articulate and systematic interpretation to the significant phraseology employed thereunder, “after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose, and after consultation with the Chief Justice of India, the Governor of the State and in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court” respectively. In order to arrive at the conclusion so made, elaborate discussions, and evaluation of various provisions of the Constitution vis-a-vis the power enjoyed by the Council of Ministers and the President of India was undertaken, and eloquent reasons are assigned, to state that the President of India is conferred with power of consultation under any other provisions of the Constitution except under Articles 124 and 217 of the Constitution. Thus the theory of “Primacy of the Chief Justice of India” is founded on well established legal principles, and rested, on pristine legal impressions, and the significant theory of felt necessity of time. 44. This view is further fortified, having endowed the power of interpretation of the provisions of the Constitution with the constitutional courts. Added to this, in my considered view, consultation coupled with enquiry and evaluation of the candidates to decipher the suitability and eligibility, undertaken through the legislative and executive process is substantively upholding democratic principles envisioned by the framers of the Constitution, though not Parliamentary democracy. It is also significant to note that, the aforementioned provisions of the Constitution of India are inducted by the Constituent Assembly constituted through a democratic process with the avowed object of achieving the best required results in the process of selection. Be it also noted only a candidate succeeding the litmus test is finally appointed by the President of India on appropriate recommendation in accordance with law and procedure established. 45. This is more so, since the provisions in question were introduced into the Constitution, by the Constituent Assembly after due deliberations, and more importantly, Assembly was sizeably occupied by lawyers and law graduates. To encapsulate, ultimate aim is to protect the independence of the judiciary through a collective methodology of the legislature, the executive and the judiciary. The totality of the circumstances also convincingly establish that the procedure adopted for recommendation and appointment of Judges, is abiding the democratic principles and upholding rule of law and thus protecting the well woven social fabric founded on the three pillars, the legislature, the executive and the judiciary. Therefore, the arguments advanced by the petitioners based on principles of per incuriam has no sustenance at all. 46. So also, in the writ petition, petitioners have made a vague statement that it is “talk of the Bar” that respondents 6 to 10 were recommended by the colligium of the High Court of Kerala. As I have pointed out earlier, the recommendations are made by the Chief Justice of the High Court in accordance with the principles of law laid down in the Second Judges case and the memorandum of procedure formulated thereunder. Therefore, in a high-profile case like this, there should have been definite assertions made by the petitioners in respect of the issues raised. Therefore, in a high-profile case like this, there should have been definite assertions made by the petitioners in respect of the issues raised. Viewed in that circumstances also, there is no established or reliable pleading before this Court to entertain the apprehensions expressed by the petitioners in this writ petition with respect to the recommendations made. 47. Added to this, is the casual, incoherent, callous and irresponsible approach made by the petitioners in filing the affidavit along with the writ petition, without verifying at all, that the facts, law and circumstances pleaded in the writ petition are true and correct to the best of the knowledge of the petitioners, as is insisted upon in the Kerala High Court Rules, which thus also means the allegations and the statements in the writ petition can never be termed pleadings in accordance with law, and it is to be treated as irresponsible and vague statements own up by none. I am also of the considered opinion that, the second relief sought for by the petitioners in respect of transfer of 1/3rd Judges is not germane to the issues raised, and there is no sufficient pleadings to appreciate and entertain the said relief also. Accordingly it is declined. To top up these aspects, in my view, the writ petition is a premature one, since the consultative process is yet to take place in respect of the eligibility and suitability of the candidates is accordance with the provisions of Article 217 of the Constitution of India and the law laid down by the apex court in the context. Above all, none of the persons against whom allegations raised are made parties to the writ petition. 48. Therefore, the conspectus of the legal and factual circumstances reckoned above makes it clear that the contentions raised by the petitioners in the writ petition are not justiciable, and otherwise also, not entitled to be considered in a judicial review, exercising the powers under Article 226 of the Constitution of India. The writ petition lacks bonafides, merit and truth, and is frivolous and mischievous also. Resultantly, the writ petition fails and is accordingly dismissed.