Justice Victoria Gowri's Appointment : Supreme Court Rejects Argument That Collegium Was Not Aware Of Facts; Says No Judicial Review Over Suitability

While pronouncing reasons for dismissing the petitions assailing the appointment of Justice Lekshmana Chandra Victoria Gowri as an Additional Judge of the Madras High Court, the Supreme Court, on Friday, rejected the argument that the facts were not known to the Collegium when they recommended her name for elevation.

During the course of the hearing on 7th February, 2023, Senior Advocate Raju Ramachandran had apprised the Supreme Court that the recommendation was made on 17th January, 2023 and the controversial statements of the candidate relating to religious minorities came to light on 1st February, 2023. Thereafter a representation was sent seeking to recall the decision of the Collegium. He implored the Court to stay the swearing in ceremony as the CJI, D.Y. Chandrachud had himself said that the Collegium is still looking into the issue.

On 6th February, 2023 when the matter was mentioned before the Bench led by the CJI for early hearing, he had made a significant disclosure that the Supreme Court Collegium had taken cognizance of the complaints which came to its notice subsequent to the recommendation.

On Tuesday, a Bench comprising Justice Sanjiv Khanna and Justice B.R. Gavai dismissed two petitions filed by advocates from the Madras High Court challenging the appointment of Justice Victoria Gowri as an additional judge of the Madras High Court. Based on articles and statements of Justice Gowri, the petitioners contended that she is unfit to be a judge as her statements amount to hate-speech against religious minorities, particularly Muslims and Christians. 

The reasons for the dismissal were pronounced on Friday. 

Reasons For Dismissal

At the outset the Bench laid down that the legal issue 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 India.” Thereafter, it noted that the issue is settled and is not res intergra. The Bench referred to its Constitution Bench judgments in this regard.

‘Lack of effective consultation’ and not ‘content of consultation’ can be the subject matter of judicial review

In Mahesh Chandra Gupta v. UoI And Ors. it was held that appointment of a judge is an executive function of the President of India. It was noted that fitness of a person to be appointed as a judge of the High Court is evaluated during the consultation process enumerated in Article 217(1) of the Constitution. The Bench went on to draw a distinction between eligibility and suitability. According to it, eligibility is an objective factor that can be determined by applying the parameters prescribed in the Constitution. Therefore, eligibility falls under the purview of judicial review.

On the other hand, 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. In M. Manohar Reddy And Anr. v. Union of India And Ors. it was held that ‘lack of effective consultation’ would attract judicial review, whereas the ‘content of consultation’ cannot be the subject matter of such scrutiny.

Primacy of the judiciary is itself a sufficient justification for the absence of the need for further judicial review

The Bench placed reliance on the judgment of the Supreme Court in SCAOR Association And Ors. v. Union of India (1993) wherein it had observed -

“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.”

IB Report and other opinion and comments are considered by the Collegium before taking a final call

It noted that when the Collegium of the High Court makes a recommendation for elevation, inputs are sought from the Intelligence Bureau for conducting a background check. The IB report is considered by the Collegium of the Supreme Court. To demonstrate the rigorous process undergone before confirming appointment, the Bench observed -

“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.”

Argument that the facts were not known and considered by the Collegium is rejected

Considering that the Collegium follows a rigorous process to consider appointment, the Bench rejected the petitioners’ argument that the facts were not known and considered by the Collegium. It was noted that even though a representation was sent to the Collegium seeking to recall their decision, it has not deemed fit to grant relief.

Supreme Court, in judicial side, cannot issue writ to quash the recommendation of the Collegium

It was made clear that the Supreme Court while exercising power under judicial review cannot issue a writ to quash the recommendation of the Collegium or call upon it to reconsider its decision as the same would amount to substituting the views of the Court as that of the Collegium.

A judge is bound by the duty bestowed upon them by Article 51A of the Constitution

The Bench observed that not only is the conduct and judgments of a judge considered at the time of confirmation, the judges are under scrutiny of the lawyers, litigants and the public at large on a regular basis. It noted that Article 51A of the Constitution of India casts an obligation on every citizen, especially on a judge, to promote harmony, spirit of common brotherhood among all transcending any diversity. It noted -

“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.”

[Case Title: Anna Mathews And Ors. v. SCI And Ors. WP(C) No. 148/2023]

Citation : 2023 LiveLaw (SC) 93