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.

Comments

Popular posts from this blog

भारतीय संविधान से संबंधित 100 महत्वपूर्ण प्रश्न उतर

100 Questions on Indian Constitution for UPSC 2020 Pre Exam

Atal Pension Yojana-(APY Chart) | अटल पेंशन योजना