ANNA MATHEWS AND OTHERS versus SUPREME COURT OF INDIA AND OTHERS on 10 February 2023

ANNA MATHEWS AND OTHERS

v.

SUPREME COURT OF INDIA AND OTHERS

(Writ Petition (Civil) No. 148 of 2023)

FEBRUARY 10, 2023

[SANJIV KHANNA AND B. R. GAVAI, JJ.]

Constitution of India: Art.217 – Collegium recommendation– Scope and ambit of judicial review in the matter of appointmentof judges – Held: The Collegium of the Supreme Court takes thefinal call after considering recommendation of High Court, inputsof intelligence agencies, comments from the government, opinionand comments of the judges of this Court and a number of lettersand communications from all quarters – Supreme Court whileexercising power of judicial review cannot issue a writ of certiorariquashing the recommendation, or mandamus calling upon theCollegium of the Supreme Court to reconsider its decision, as thiswould be contrary to the ratio and dictum of the earlier bindingdecisions of this Court – To do so would violate the law as declared,as it would amount to evaluating and substituting the decision ofthe Collegium, with individual or personal opinion on the suitabilityand merits of the person.

Constitution of India: Art.217 – While Art.217(2) prescribesthe threshold limit or the entry point for a person to be qualified tobe a judge of a High Court, Art.217(1) prescribes the procedure tobe followed, which procedure is designed to test the fitness of aperson so to be appointed; her character, her integrity, hercompetence, her knowledge and the like – When eligibility is put inquestion, the question would fall within the scope of judicial review– However, the question whether a person is fit to be appointed asa judge essentially involves the aspect of suitability and standsexcluded from the purview of judicial review.

Dismissing the writ petitions, the Court HELD: After the Collegium of the High Court makes arecommendation for elevation, inputs are received from the

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Aintelligence agencies, which conduct a background check, andcomments from the government are considered by the Collegiumof the Supreme Court consisting of the Chief Justice of India andtwo senior most Judges. Opinion and comments of the Judges inthis Court conversant with the affairs of the High Court concernedBare called for in writing and placed before the Collegium.Invariably a number of shoot down and dismissive letters andcommunications from all quarters are received. Only thereafter,and on consideration, the Collegium of the Supreme Court takesa final call, which is then communicated to the government.

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2. During the course of hearing before this Court, it wasaccepted that a number of persons, who have had politicalbackgrounds, have been elevated as judges of the High Courtsand the Supreme Court, and this by itself, though a relevantDconsideration, has not been an absolute bar to appointment ofotherwise a suitable person. Similarly, there have been caseswhere the persons recommended for elevation have expressedreservations or even criticised policies or actions, but this hasnot been held to be a ground to treat them as unsuitable. It goesEwithout saying that the conduct of the judge and her/his decisionsmust reflect and show independence, adherence to the democraticand constitutional values. This is necessary as the judiciary holdsthe centre stage in protecting and strengthening democracy andupholding human rights and Rule of Law. [Para 8][470-F-H; 471- FA]

3. It is in this context that the argument that the facts werenot known and considered by the Collegium is rejected. Thepetitioners have themselves stated and enclosed copy of theirrepresentation dated 1st February 2023, albeit the Collegium ofGthe High Court and the Supreme Court have not, on this basis,deemed it appropriate to withdraw the recommendation or recalltheir decision. [Para 9][471-B-C]

4. This Court while exercising power of judicial reviewcannot issue a writ of certiorari quashing the recommendation,H

or mandamus calling upon the Collegium of the Supreme Courtto reconsider its decision, as this would be contrary to the ratioand dictum of the earlier decisions of this Court, which are bindingon this Court. To do so would violate the law as declared, as itwould amount to evaluating and substituting the decision of theCollegium, with individual or personal opinion on the suitabilityand merits of the person. [Para 10][471-C-E]

5. The person in question has been elevated as an AdditionalJudge of the High Court of Judicature at Madras. On taking oaththe person pledges to work as a judge to uphold the Constitutionand the laws. Article 51A of the Constitution casts an obligationon every citizen, and more so on every judge, to promote harmony,spirit of common brotherhood among all transcending religious,linguistic, regional or sectional diversities. Principle of secularismand dignity of every individual – regardless of the religion, casteor creed, is the foundation of Rule of Law and equal protection oflaws. Not only is the conduct and judgments delivered consideredat the time of confirmation, a judge is judged everyday by thelawyers, litigants and the public, as the courts are open and thejudges speak by giving reasons in writing for their decisions.[Para 12][471-F-H; 472-A-B]

Mahesh Chandra Gupta v. Union of India and Others(2009) 8 SCC 273 : [2009] 10 SCR 921; M. ManoharReddy and Another v. Union of India and Others (2013)3 SCC 99 : [2013] 1 SCR 711; Supreme CourtAdvocates-on-Record Association and Others v. Unionof India (1993) 4 SCC 441 : [1993] 2 Suppl. SCR 659; Special Reference No. 1 of 1998, Re (1998) 7 SCC739 : [1998] 2 Suppl. SCR 400; N. kannadasan v.Ajoy Khose and Others, (2009) 7 SCC 1 : [2009] 7SCR 668 – relied on.

Shri Kumar Padma Prasad v. Union of India and Others(1992) 2 SCC 428 : [1992] 2 SCR 109 – referred to.

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Case Law References

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CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.148of 2023.

(Under Article 32 of The Constitution of India)

WithD

Writ Petition (Civil) No.147 of 2023.

Ms. Sanchita Ain, Srisatya Mohanty, Ravinder Singh, Advs. forthe Petitioner.

EThe following Reasons were given by the Court:

REASONS

1. The legal issue raised in the aforementioned writ petitions relatesto the scope and ambit of judicial review in the matter of appointment ofFjudges to the High Courts under Article 217 of the Constitution of India[1].

2. In our opinion, this legal issue is settled and is not res integra.

1 217. Appointment and conditions of the office of a Judge of a High Court.— (1)Every Judge of a High Court shall be appointed by the President by warrant under hishand and seal on the recommendation of the National Judicial Appointments Commissionreferred to in article 124A, and shall hold office, in the case of an additional or actingGJudge, as provided in article 224, and in any other case, until he attains the age of sixty-two years:Provided that—

(a) a Judge may, by writing under his hand addressed to the President, resign his office;(b) a Judge may be removed from his office by the President in the manner provided inclause (4) of article 124 for the removal of a Judge of the Supreme Court; H

3. This Court, in Mahesh Chandra Gupta v. Union of Indiaand Others[2], has held that appointment of a judge is an executive functionof the President of India. Article 217(1) prescribes the constitutionalrequirement of consultation. Fitness of a person to be appointed as ajudge of the High Court is evaluated in the consultation process. Evaluationof the worth and merit of a person is a matter entirely different fromeligibility of a candidate for elevation. While Article 217(2) prescribesthe threshold limit or the entry point for a person to be qualified to be ajudge of a High Court, Article 217(1) prescribes the procedure to befollowed, which procedure is designed to test the fitness of a person soto be appointed; her character, her integrity, her competence, herknowledge and the like. Thus, this judgment draws on the basic differencebetween eligibility and suitability. Eligibility is an objective factor whichis determined by applying the parameters or qualifications specified inArticle 217(2). Therefore, when eligibility is put in question, the question

(c) the office of a Judge shall be vacated by his being appointed by the President to bea Judge of the Supreme Court or by his being transferred by the President to any otherHigh Court within the territory of India.

(2) A person shall not be qualified for appointment as a Judge of a High Court unless heis a citizen of India and—

(a) has for at least ten years held a judicial office in the territory of India; or (b) has for at least ten years been an advocate of a High Court or of two or more suchCourts in succession; Explanation.— For the purposes of this clause—

(a) in computing the period during which a person has held judicial office in the territoryof India, there shall be included any period, after he has held any judicial office, duringwhich the person has been an advocate of a High Court or has held the office of amember of a tribunal or any post, under the Union or a State, requiring special knowledgeof law; (aa) in computing the period during which a person has been an advocate of a HighCourt, there shall be included any period during which the person has held judicialoffice or the office of a member of a tribunal or any post, under the Union or a State,requiring special knowledge of law after he became an advocate; (b) in computing the period during which a person has held judicial office in theterritory of India or been an advocate of a High Court, there shall be included anyperiod before the commencement of this Constitution during which he has held judicialoffice in any area which was comprised before the fifteenth day of August, 1947,within India as defined by the Government of India Act, 1935, or has been an advocateof any High Court in any such area, as the case may be.

(3) If any question arises as to the age of a Judge of a High Court, the question shall bedecided by the President after consultation with the Chief Justice of India and thedecision of the President shall be final.2 (2009) 8 SCC 273.

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Awould fall within the scope of judicial review. However, the questionwhether a person is fit to be appointed as a judge essentially involves theaspect of suitability and stands excluded from the purview of judicialreview.

4. The ratio in this judgment has been followed in M. ManoharBReddy and Another v. Union of India and Others[3], inter alia, observingthat the consultative process envisaged under Article 217(1) is to limitthe judicial review, restricting it to the specified area, that is, eligibility,and not suitability. After referring to two decisions of the 9 Judges’ Bench

in Supreme Court Advocates-on-Record Association and Others v.CUnion of India[4], and Special Reference No. 1 of 1998, Re:[5], it isopined that judicial review lies when there is lack of eligibility or ‘lack ofeffective consultation’. Judicial review does not lie on ‘content’ ofconsultation.

D5. Elaborating on what is meant by the term ‘lack of effectiveconsultation’, we would like to refer to the observations made by thisCourt in Supreme Court Advocates-on-Record Association and Others(supra):

“JUSTICIABILITYEAppointments and Transfers

480. The primacy of the judiciary in the matter of appointmentsand its determinative nature in transfers introduces the judicialelement in the process, and is itself a sufficient justification for theFabsence of the need for further judicial review of those decisions,which is ordinarily needed as a check against possible executiveexcess or arbitrariness. Plurality of judges in the formation of theopinion of the Chief Justice of India, as indicated, is another inbuiltcheck against the likelihood of arbitrariness or bias, evenGsubconsciously, of any individual. The judicial element beingpredominant in the case of appointments, and decisive in transfers,as indicated, the need for further judicial review, as in other 3 (2013) 3 SCC 99.

4 (1993) 4 SCC 441.

H5 (1998) 7 SCC 739.

ANNA MATHEWS AND OTHERS v. SUPREME COURT OFINDIA AND OTHERS

executive actions, is eliminated. The reduction of the area ofdiscretion to the minimum, the element of plurality of judges information of the opinion of the Chief Justice of India, effectiveconsultation in writing, and prevailing norms to regulate the areaof discretion are sufficient checks against arbitrariness.

481. These guidelines in the form of norms are not to be construedas conferring any justiciable right in the transferred Judge. Apartfrom the constitutional requirement of a transfer being made onlyon the recommendation of the Chief Justice of India, the issue oftransfer is not justiciable on any other ground, including the reasonsfor the transfer or their sufficiency. The opinion of the Chief Justiceof India formed in the manner indicated is sufficient safeguardand protection against any arbitrariness or bias, as well as anyerosion of the independence of the judiciary.

482. This is also in accord with the public interest of excludingthese appointments and transfers from litigative debate, to avoidany erosion in the credibility of the decisions, and to ensure a freeand frank expression of honest opinion by all the constitutionalfunctionaries, which is essential for effective consultation and fortaking the right decision. The growing tendency of needlessintrusion by strangers and busybodies in the functioning of thejudiciary under the garb of public interest litigation, in spite of thecaution in S.P. Gupta while expanding the concept of locus standi,was adverted to recently by a Constitution Bench in KrishnaSwami v. Union of India. It is, therefore, necessary to spell outclearly the limited scope of judicial review in such matters, toavoid similar situations in future. Except on the ground of want ofconsultation with the named constitutional functionaries or lack ofany condition of eligibility in the case of an appointment, or of atransfer being made without the recommendation of the ChiefJustice of India, these matters are not justiciable on any otherground, including that of bias, which in any case is excluded bythe element of plurality in the process of decision-making.”

6. Following the ratio, in Mahesh Chandra Gupta (supra), it hasbeen held that:

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A“77. As stated above, in the present case, the matter has arisenfrom the writ of quo warranto and not from the writ of certiorari.The biodata of Respondent 3 was placed before the Collegiums.Whether Respondent 3 was “suitable” to be appointed a HighCourt Judge or whether he satisfied the fitness test as enumeratedBhereinabove is beyond justiciability as far as the present proceedingsare concerned. We have decided this matter strictly on the basisof the constitutional scheme in the matter of appointments of HighCourt Judges as laid down in Supreme Court Advocates-on-Record Assn. and in Special Reference No. 1 of 1998, Re.CEssentially, having worked as a member of the Tribunal for 11years, Respondent 3 satisfies the “eligibility qualification” in Article217(2)(b) read with Explanation (aa).”

7. To further elucidate, we need to state that after the Collegiumof the High Court makes a recommendation for elevation, inputs areDreceived from the intelligence agencies, which conduct a backgroundcheck, and comments from the government are considered by theCollegium of the Supreme Court consisting of the Chief Justice of Indiaand two senior most Judges. Opinion and comments of the Judges in thisCourt conversant with the affairs of the High Court concerned are calledEfor in writing and placed before the Collegium. Invariably a number ofshoot down and dismissive letters and communications from all quartersare received. Only thereafter, and on consideration, the Collegium of theSupreme Court takes a final call, which is then communicated to thegovernment.F

8. During the course of hearing before us, it was accepted that anumber of persons, who have had political backgrounds, have beenelevated as judges of the High Courts and the Supreme Court, and thisby itself, though a relevant consideration, has not been an absolute bar toappointment of otherwise a suitable person. Similarly, there have beenGcases where the persons recommended for elevation have expressedreservations or even criticised policies or actions, but this has not beenheld to be a ground to treat them as unsuitable. It goes without sayingthat the conduct of the judge and her/his decisions must reflect andshow independence, adherence to the democratic and constitutionalHvalues. This is necessary as the judiciary holds the centre stage in protecting and strengthening democracy and upholding human rights andRule of Law.[6]

9. We have made the said observations as these are aspects whichare established and are taken into consideration by the Collegiums, bothof the High Courts and the Supreme Court. It is in this context that wereject the argument that the facts were not known and considered bythe Collegium. The petitioners have themselves stated and enclosed copyof their representation dated 1[st] February 2023, albeit the Collegium ofthe High Court and the Supreme Court have not, on this basis, deemed itappropriate to withdraw the recommendation or recall their decision.

10. We are clearly of the opinion that this Court, while exercisingpower of judicial review cannot issue a writ of certiorari quashing therecommendation, or mandamus calling upon the Collegium of theSupreme Court to reconsider its decision, as this would be contrary tothe ratio and dictum of the earlier decisions of this Court referred toabove, which are binding on us. To do so would violate the law asdeclared, as it would amount to evaluating and substituting the decisionof the Collegium, with individual or personal opinion on the suitability andmerits of the person.

11. The decision of this Court in Shri Kumar Padma Prasad v.Union of India and Others[7], was a case relating to eligibility of a person,in whose favour the warrant for appointment as a judge of the HighCourt had been issued, but who was not qualified to be appointed as ajudge of the High Court. The ratio of this judgment cannot be extendedto apply the power of judicial review to examine the suitability or meritof a candidate.

12. We may also state that the person in question has been elevatedas an Additional Judge of the High Court of Judicature at Madras. Ontaking oath the person pledges to work as a judge to uphold the Constitutionand the laws. Article 51A[8]of the Constitution casts an obligation onevery citizen, and more so on every judge, to promote harmony, spirit ofcommon brotherhood among all transcending religious, linguistic, regional 6 See N. Kannadasan v. Ajoy Khose and Others, (2009) 7 SCC 1.

7 (1992) 2 SCC 428

8 Part IV-A- Fundamental Duties.

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Aor sectional diversities. Principle of secularism and dignity of everyindividual – regardless of the religion, caste or creed, is the foundation ofRule of Law and equal protection of laws. Not only is the conduct andjudgments delivered considered at the time of confirmation, a judge isjudged everyday by the lawyers, litigants and the public, as the courtsBare open and the judges speak by giving reasons in writing for theirdecisions.

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13. For the aforesaid reasons, we do not find any merit in thepresent writ petitions and, thus, we are not inclined to entertain and issuenotice.

14. The writ petitions are dismissed at the admission stage.

Devika Gujral

Writ petitions dismissed.

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