Suitability of a candidate cleared by Collegium can’t be subject of judicial review: Supreme Court

Bench says the Collegium had not “deemed it appropriate to withdraw the recommendation or recall their decision” to approve Victoria Gowri

Updated - February 10, 2023 10:53 pm IST

Published - February 10, 2023 12:20 pm IST - NEW DELHI

NEW DELHI

The Supreme Court on February 10, 2023, in a nine-page order, explained that “suitability” of a candidate cleared by the Collegium for appointment as a judge in a constitutional court cannot be a subject of judicial review.

“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… 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,” a Special Bench of Justices Sanjiv Khanna and B.R. Gavai reasoned.

The Bench rejected the argument that the Collegium had not known the “facts” about Victoria Gowri. It said the Collegium had not “deemed it appropriate to withdraw the recommendation or recall their decision” even after receiving the petitioners’ letter about her on February 1. The order, however, does not address the petitioner’s argument about the oral statement made by Chief Justice of India D.Y. Chandrachud in open court on February 6 that the Collegium was considering the “developments” raised in the letter. The letter had drawn the Collegium’s attention to social media posts of Ms. Gowri in 2018 which, according to the petitioners, amounted to hate speech.

Under daily scrutiny

But the Bench, in its order, said a judge’s pledge and duty transcended religious, linguistic, regional or sectional diversities. As an Additional Judge, she was under daily scrutiny from lawyers, litigants and the public. The courts were open and the judges spoke by giving reasons in writing for their decisions. Her confirmation as a Permanent Judge would not just depend on her conduct and judgments.

The court said the question whether Ms. Gowri was “fit” to be a judge was outside the ambit of judicial review.

“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,” it noted.

The Bench distinguished between ‘suitability’ and ‘eligibility’ of a candidate zeroed in for High Court judgeship. Eligibility was based on “objective factors” given in Article 217(2) of the Constitution like citizenship and 10 years’ experience as a judicial officer or a lawyer in a High Court.

Suitability of a candidate was the domain of the Collegium as it involved a procedure “designed to test the fitness of a person, including her character, integrity, competence, knowledge and the like”.

The court observed that the consultation process during judicial appointments was extensive. It said that “invariably a number of shoot-downs and dismissive letters and communications from all quarters are received” during a High Court appointment. Political background of a candidate was a relevant consideration but not an absolute bar to appointment.

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