ANNA MATHEWS AND OTHERS VERSUS SUPREME COURT OF INDIA AND OTHERS

ANNA MATHEWS AND OTHERS VERSUS SUPREME COURT OF INDIA AND OTHERS

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

.P. (C) Nos. 148 & 147 of 2023 Page 1 of 9

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 148 OF 2023

ANNA MATHEWS AND OTHERS ..... PETITIONERS

VERSUS

SUPREME COURT OF INDIA AND OTHERS ..... RESPONDENTS

W I T H

WRIT PETITION (CIVIL) NO. 147 OF 2023

R E A S O N S

The legal issue raised in the aforementioned writ petitions

relates to the scope and ambit of judicial review in the matter of

appointment of judges to the High Courts under Article 217 of the

Constitution of India1

.

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 his hand and seal on the

recommendation of the National Judicial Appointments Commission referred to in article 124A, and

shall hold office, in the case of an additional or acting Judge, 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 in clause (4) of

article 124 for the removal of a Judge of the Supreme Court;

(c) the office of a Judge shall be vacated by his being appointed by the President to be a Judge of the

Supreme Court or by his being transferred by the President to any other High Court within the territory

of India.

W.P. (C) Nos. 148 & 147 of 2023 Page 2 of 9

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

3. This Court, in Mahesh Chandra Gupta v. Union of India and

Others2

, has held that appointment of a judge is an executive

function of the President of India. Article 217(1) prescribes the

constitutional requirement of consultation. Fitness of a person to be

appointed as a judge of the High Court is evaluated in the

consultation process. Evaluation of the worth and merit of a person

is a matter entirely different from eligibility of a candidate for

elevation. While Article 217(2) prescribes the threshold limit or the

entry point for a person to be qualified to be a judge of a High Court,

Article 217(1) prescribes the procedure to be followed, which

(2) A person shall not be qualified for appointment as a Judge of a High Court unless he is 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 such Courts in

succession;

Explanation.— For the purposes of this clause—

(a) in computing the period during which a person has held judicial office in the territory of India, there

shall be included any period, after he has held any judicial office, during which the person has been an

advocate of a High Court or has held the office of a member of a tribunal or any post, under the Union

or a State, requiring special knowledge of law;

(aa) in computing the period during which a person has been an advocate of a High Court, there shall

be included any period during which the person has held judicial office 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 the territory of India or been

an advocate of a High Court, there shall be included any period before the commencement of this

Constitution during which he has held judicial office 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 advocate of 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 be decided by

the President after consultation with the Chief Justice of India and the decision of the President shall

be final.

2

(2009) 8 SCC 273.

W.P. (C) Nos. 148 & 147 of 2023 Page 3 of 9

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. Thus, this judgment draws on the basic

difference between eligibility and suitability. Eligibility is an objective

factor which is determined by applying the parameters or

qualifications specified in Article 217(2). Therefore, 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.

4. The ratio in this judgment has been followed in M. Manohar Reddy

and Another v. Union of India and Others3

, inter alia, observing

that the consultative process envisaged under Article 217(1) is to

limit the 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. Union of India4

, and Special

Reference No. 1 of 1998, Re:

5

, it is opined that judicial review lies

3

(2013) 3 SCC 99.

4

(1993) 4 SCC 441.

5

(1998) 7 SCC 739.

W.P. (C) Nos. 148 & 147 of 2023 Page 4 of 9

when there is lack of eligibility or ‘lack of effective consultation’.

Judicial review does not lie on ‘content’ of consultation.

5. Elaborating on what is meant by the term ‘lack of effective

consultation’, we would like to refer to the observations made by

this Court in Supreme Court Advocates-on-Record Association

and Others (supra):

“JUSTICIABILITY

Appointments and Transfers

480. The primacy of the judiciary in the matter of

appointments and its determinative nature in transfers

introduces the judicial element in the process, and is

itself a sufficient justification for the absence of the need

for further judicial review of those decisions, which is

ordinarily needed as a check against possible executive

excess or arbitrariness. Plurality of judges in the

formation of the opinion of the Chief Justice of India, as

indicated, is another inbuilt check against the likelihood

of arbitrariness or bias, even subconsciously, of any

individual. The judicial element being predominant in the

case of appointments, and decisive in transfers, as

indicated, the need for further judicial review, as in other

executive actions, is eliminated. The reduction of the

area of discretion to the minimum, the element of plurality

of judges in formation of the opinion of the Chief Justice

of India, effective consultation in writing, and prevailing

norms to regulate the area of discretion are sufficient

checks against arbitrariness.

481. These guidelines in the form of norms are not to be

construed as conferring any justiciable right in the

transferred Judge. Apart from the constitutional

requirement of a transfer being made only on the

recommendation of the Chief Justice of India, the issue

of transfer is not justiciable on any other ground,

including the reasons for the transfer or their sufficiency.

The opinion of the Chief Justice of India formed in the

manner indicated is sufficient safeguard and protection

W.P. (C) Nos. 148 & 147 of 2023 Page 5 of 9

against any arbitrariness or bias, as well as any erosion

of the independence of the judiciary.

482. This is also in accord with the public interest of

excluding these appointments and transfers from

litigative debate, to avoid any erosion in the credibility of

the decisions, and to ensure a free and frank expression

of honest opinion by all the constitutional functionaries,

which is essential for effective consultation and for taking

the right decision. The growing tendency of needless

intrusion by strangers and busybodies in the functioning

of the judiciary under the garb of public interest litigation,

in spite of the caution in S.P. Gupta while expanding the

concept of locus standi, was adverted to recently by a

Constitution Bench in Krishna Swami v. Union of India. It

is, therefore, necessary to spell out clearly the limited

scope of judicial review in such matters, to avoid similar

situations in future. Except on the ground of want of

consultation with the named constitutional functionaries

or lack of any condition of eligibility in the case of an

appointment, or of a transfer being made without the

recommendation of the Chief Justice of India, these

matters are not justiciable on any other ground, including

that of bias, which in any case is excluded by the element

of plurality in the process of decision-making.”

6. Following the ratio, in Mahesh Chandra Gupta (supra), it has been

held that:

“77. As stated above, in the present case, the matter has

arisen from 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 High Court Judge or whether

he satisfied the fitness test as enumerated hereinabove

is beyond justiciability as far as the present proceedings

are concerned. We have decided this matter strictly on

the basis of the constitutional scheme in the matter of

appointments of High Court Judges as laid down in

Supreme Court Advocates-on-Record Assn. and in

Special Reference No. 1 of 1998, Re. Essentially, having

worked as a member of the Tribunal for 11 years,

Respondent 3 satisfies the “eligibility qualification” in

Article 217(2)(b) read with Explanation (aa).”

W.P. (C) Nos. 148 & 147 of 2023 Page 6 of 9

7. To further elucidate, we need to state that 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.

8. During the course of hearing before us, 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

W.P. (C) Nos. 148 & 147 of 2023 Page 7 of 9

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.6

9. We have made the said observations as these are aspects which

are established and are taken into consideration by the Collegiums,

both of the High Courts and the Supreme Court. It is in this context

that we reject the argument that the facts were not known and

considered by the Collegium. 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.

10. We are clearly of the opinion that 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 referred

6 See N. Kannadasan v. Ajoy Khose and Others, (2009) 7 SCC 1.

W.P. (C) Nos. 148 & 147 of 2023 Page 8 of 9

to above, which are binding on us. 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.

11. The decision of this Court in Shri Kumar Padma Prasad v. Union

of India and Others7

, was a case relating to eligibility of a person,

in whose favour the warrant for appointment as a judge of the High

Court had been issued, but who was not qualified to be appointed

as a judge of the High Court. The ratio of this judgment cannot be

extended to apply the power of judicial review to examine the

suitability or merit of a candidate.

12. We may also state that 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 51A8 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

7

(1992) 2 SCC 428

8 Part IV-A- Fundamental Duties.

W.P. (C) Nos. 148 & 147 of 2023 Page 9 of 9

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.

13. For the aforesaid reasons, we do not find any merit in the present

writ petitions and, thus, we are not inclined to entertain and issue

notice.

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

......................................J.

(SANJIV KHANNA)

......................................J.

(B.R. GAVAI)

NEW DELHI;

FEBRUARY 10, 2023.