Constitution of India: Art.217 – Collegium recommendation – Scope and ambit of judicial review in the matter of appointment of judges – Held: The Collegium of the Supreme Court takes the final call after considering recommendation of High Court, inputs of intelligence agencies, comments from the government, opinion and comments of the judges of this Court and a number of letters and communications from all quarters – Supreme Court while exercising power of judicial review cannot issue a writ of certiorari quashing the recommendation, or mandamus calling upon the Collegium of the Supreme Court to reconsider its decision, as this would be contrary to the ratio and dictum of the earlier binding decisions of this Court – To do so would violate the law as declared, as it would amount to evaluating and substituting the decision of the Collegium, with individual or personal opinion on the suitability and merits of the person.
Constitution of India: Art.217 – While Art.217(2) prescribes the threshold limit or the entry point for a person to be qualified to be a judge of a High Court, Art.217(1) prescribes the procedure to be followed, which procedure is designed to test the fitness of a person so to be appointed; her character, her integrity, her competence, her knowledge and the like – When eligibility is put in question, the question would fall within the scope of judicial review – However, the question whether a person is fit to be appointed as a judge essentially involves the aspect of suitability and stands excluded from the purview of judicial review.
Dismissing the writ petitions, the Court
HELD: After the Collegium of the High Court makes a recommendation for elevation, inputs are received from the intelligence agencies, which conduct a background check, and comments from the government are considered by the Collegium of the Supreme Court consisting of the Chief Justice of India and two senior most Judges. Opinion and comments of the Judges in this Court conversant with the affairs of the High Court concerned are called for in writing and placed before the Collegium. Invariably a number of shoot down and dismissive letters and communications from all quarters are received. Only thereafter, and on consideration, the Collegium of the Supreme Court takes a final call, which is then communicated to the government. [Para 7][470-D-F]
2. During the course of hearing before this Court, it was accepted that a number of persons, who have had political backgrounds, have been elevated as judges of the High Courts and the Supreme Court, and this by itself, though a relevant consideration, has not been an absolute bar to appointment of otherwise a suitable person. Similarly, there have been cases where the persons recommended for elevation have expressed reservations or even criticised policies or actions, but this has not been held to be a ground to treat them as unsuitable. It goes without saying that the conduct of the judge and her/his decisions must reflect and show independence, adherence to the democratic and constitutional values. This is necessary as the judiciary holds the centre stage in protecting and strengthening democracy and upholding human rights and Rule of Law. [Para 8][470-F-H; 471A]
3. It is in this context that the argument that the facts were not known and considered by the Collegium is rejected. The petitioners have themselves stated and enclosed copy of their representation dated 1st February 2023, albeit the Collegium of the High Court and the Supreme Court have not, on this basis, deemed it appropriate to withdraw the recommendation or recall their decision. [Para 9][471-B-C]
4. This Court while exercising power of judicial review cannot issue a writ of certiorari quashing the recommendation, or mandamus calling upon the Collegium of the Supreme Court to reconsider its decision, as this would be contrary to the ratio and dictum of the earlier decisions of this Court, which are binding on this Court. To do so would violate the law as declared, as it would amount to evaluating and substituting the decision of the Collegium, with individual or personal opinion on the suitability and merits of the person. [Para 10][471-C-E]
5. The person in question has been elevated as an Additional Judge of the High Court of Judicature at Madras. On taking oath the person pledges to work as a judge to uphold the Constitution and the laws. Article 51A of the Constitution casts an obligation on 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 secularism and dignity of every individual – regardless of the religion, caste or creed, is the foundation of Rule of Law and equal protection of laws. Not only is the conduct and judgments delivered considered at the time of confirmation, a judge is judged everyday by the lawyers, litigants and the public, as the courts are open and the judges 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. Manohar Reddy and Another v. Union of India and Others (2013)
3 SCC 99 : [2013] 1 SCR 711; Supreme Court
Advocates-on-Record Association and Others v. Union of India (1993) 4 SCC 441 : [1993] 2 Suppl. SCR 659; Special Reference No. 1 of 1998, Re (1998) 7 SCC
739 : [1998] 2 Suppl. SCR 400; N. kannadasan v. Ajoy Khose and Others, (2009) 7 SCC 1 : [2009] 7 SCR 668 – relied on.
Shri Kumar Padma Prasad v. Union of India and Others (1992) 2 SCC 428 : [1992] 2 SCR 109 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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