The Wire Staff 
New Delhi: The Supreme Court, while dismissing the petitions filed challenging the appointment of Justice Victoria Gowri to the Madras high court, held that the issue is “settled and is not re intergra”.
The bench of Justices Sanjiv Khanna and B.R. Gavai had on February 7 dismissed the two petitions filed by advocates from the Madras high court and pronounced the reasons for the same on February 10.
The apex court noted in its order that “in the present case, the matter has arisen from the writ of quo warranto and not from the writ of certiorari”. It said the biodata of Respondent 3 (Gowri) 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.”
During the hearing of the case on February 7, senior advocate Raju Ramachandran while appearing for the petitioners had stated that the recommendation for Gowr’s appointment was made on January 17, but controversial statements she had made on religious minorities became known on February 1. Thereafter, the counsel said, a representation was made seeking that the Collegium recall its decision.
Ramachandran had also urged the apex court to stay the swearing in of the judge as the Chief Justice of India D.Y. Chadrachud had himself stated that the Collegium was looking into the issue. However, the petitions were dismissed by the court.
In its ruling, the bench held that it “decided this matter strictly on the basis of the constitutional scheme in the matter of appointments of High Court Judges”. It further said that “having worked as a member of the Tribunal for 11 years, Respondent 3 satisfies the eligibility qualification”.
Further, the court reasoned 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.”
It added that “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.”
The bench said during the course of hearing before it, “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 as unsuitable.”
Therefore, it argued, that “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.”
Stating that “these are aspects which are established and are taken into consideration by the Collegiums, both of the High Courts and the Supreme Court”, the Bench added that “it is in this context that we reject the argument that the facts were not known and considered by the Collegium.”
Making a mention of the representation made on February 1 and how “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”, the Bench said, “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 … which are binding on us.”
It also noted that it cannot issue a writ or certiorari or mandamus as “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 bench also cited the decision of the apex court in Shri Kumar Padma Prasad v. Union of India and Others, saying it 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.” It said, “the ratio of this judgment cannot be extended to apply the power of judicial review to examine the suitability or merit of a candidate.”