The Supreme Court (SC) on February 10, 2023 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. The court was hearing the Victoria Gowri appointment case, who is now a judge of the Madras High Court.
Key points
- The SC said that the 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.
- The Supreme Court 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 Bench, in its order, said a judge’s pledge and duty transcended religious, linguistic, regional or sectional diversities.
- 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.
- 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.
- 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”. Hence, it cannot be a subject of judicial review.
- 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.
