Holding

The Supreme Court held that the collegium’s decision on the suitability of a judge is not subject to judicial review, and courts cannot issue certiorari or mandamus to quash or compel reconsideration of such appointments.

Summary

The petitioners challenged the appointment of an individual as an Additional Judge of the Madras High Court, alleging that the collegium had not properly considered the candidate's suitability and seeking a writ of certiorari and mandamus to quash the recommendation and compel reconsideration. The Court examined whether judicial review extends to the suitability aspect of judicial appointments under Article 217 of the Constitution. It held that the collegium’s final decision on suitability is beyond the scope of judicial review; only eligibility and the adequacy of the consultative process are reviewable. Consequently, the Court ruled that it cannot issue a writ to quash the recommendation or direct the collegium to reconsider its decision. The writ petitions were dismissed at the admission stage.

Issues considered

Whether the Supreme Court can exercise judicial review over the collegium's decision on the suitability of a High Court judge.
Whether a writ of certiorari or mandamus can be issued to quash or direct reconsideration of a collegium recommendation.
Whether the eligibility criteria under Article 217(2) are subject to judicial review, as opposed to suitability considerations.

Legislation cited

Constitution of Indias. Art.217(1), s. Art.217(2), s. Art.51A

Subjects

judicial reviewcollegium systemappointment of judgesHigh Court judgesArticle 217certiorarimandamuseligibility vs suitabilityconstitutional law

Judgment

[2023] 1 S.C.R. 463 463

ANNA MATHEWS AND OTHERS A
v.
SUPREME COURT OF INDIA AND OTHERS
(Writ Petition (Civil) No. 148 of 2023)
FEBRUARY 10, 2023 B

[SANJIV KHANNA AND B. R. GAVAI, JJ.]
Constitution of India: Art.217 – Collegium recommendation
– Scope and ambit of judicial review in the matter of appointment
of judges – Held: The Collegium of the Supreme Court takes the C
final call after considering recommendation of High Court, inputs
of intelligence agencies, comments from the government, opinion
and comments of the judges of this Court and a number of letters
and communications from all quarters – Supreme Court while
exercising power of judicial review cannot issue a writ of certiorari
quashing the recommendation, or mandamus calling upon the D
Collegium of the Supreme Court to reconsider its decision, as this
would be contrary to the ratio and dictum of the earlier binding
decisions of this Court – 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 E
and merits of the person.
Constitution of India: Art.217 – While Art.217(2) prescribes
the threshold limit or the entry point for a person to be qualified to
be a judge of a High Court, Art.217(1) prescribes the procedure to
be followed, which procedure is designed to test the fitness of a F
person so to be appointed; her character, her integrity, her
competence, her knowledge and the like – 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 G
excluded from the purview of judicial review.
Dismissing the writ petitions, the Court

HELD: After the Collegium of the High Court makes a
recommendation for elevation, inputs are received from the
H
463
464 SUPREME COURT REPORTS [2023] 1 S.C.R.

A 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
B 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.
C [Para 7][470-D-F]

2. During the course of hearing before this Court, 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
D 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. It goes
E 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. [Para 8][470-F-H; 471-
F A]

3. It is in this context that the argument that the facts were
not known and considered by the Collegium is rejected. The
petitioners have themselves stated and enclosed copy of their
representation dated 1st February 2023, albeit the Collegium of
G the High Court and the Supreme Court have not, on this basis,
deemed it appropriate to withdraw the recommendation or recall
their decision. [Para 9][471-B-C]

4. This Court while exercising power of judicial review
cannot issue a writ of certiorari quashing the recommendation,
H
ANNA MATHEWS AND OTHERS v. SUPREME COURT OF 465
INDIA AND OTHERS

or mandamus calling upon the Collegium of the Supreme Court A
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 this Court. 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 B
and merits of the person. [Para 10][471-C-E]

5. 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
C
and the laws. Article 51A 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 religion, caste
D
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.
E
[Para 12][471-F-H; 472-A-B]

Mahesh Chandra Gupta v. Union of India and Others
(2009) 8 SCC 273 : [2009] 10 SCR 921; M. Manohar
Reddy and Another v. Union of India and Others (2013)
3 SCC 99 : [2013] 1 SCR 711; Supreme Court F
Advocates-on-Record Association and Others v. Union
of India (1993) 4 SCC 441 : [1993] 2 Suppl. SCR
659; Special Reference No. 1 of 1998, Re (1998) 7 SCC
739 : [1998] 2 Suppl. SCR 400; N. kannadasan v.
Ajoy Khose and Others, (2009) 7 SCC 1 : [2009] 7 G
SCR 668 – relied on.

Shri Kumar Padma Prasad v. Union of India and Others
(1992) 2 SCC 428 : [1992] 2 SCR 109 – referred to.

H
466 SUPREME COURT REPORTS [2023] 1 S.C.R.

A Case Law References
[2009] 10 SCR 921 relied on Para 3
[2013] 1 SCR 711 relied on Para 4
[1993] 2 Suppl. SCR 659 relied on Para 4
B
[1998] 2 Suppl. SCR 400 relied on Para 4
[2009] 7 SCR 668 relied on Para 8
[1992] 2 SCR 109 relied on Para 11
C
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.148
of 2023.
(Under Article 32 of The Constitution of India)
With
D
Writ Petition (Civil) No.147 of 2023.
Ms. Sanchita Ain, Srisatya Mohanty, Ravinder Singh, Advs. for
the Petitioner.

E The following Reasons were given by the Court:
REASONS
1. The legal issue raised in the aforementioned writ petitions relates
to the scope and ambit of judicial review in the matter of appointment of
F judges to the High Courts under Article 217 of the Constitution of India1.

2. In our opinion, this legal issue is settled and is not res integra.
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
G 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;
H
ANNA MATHEWS AND OTHERS v. SUPREME COURT OF 467
INDIA AND OTHERS

3. This Court, in Mahesh Chandra Gupta v. Union of India A
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 B
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 procedure is designed to test the fitness of a person so
to be appointed; her character, her integrity, her competence, her C
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

(c) the office of a Judge shall be vacated by his being appointed by the President to be D
a Judge of the Supreme Court or by his being transferred by the President to any other
High Court within the territory of India.
(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; E
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
F
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 G
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. H
468 SUPREME COURT REPORTS [2023] 1 S.C.R.

A 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
B
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.
C Union of India4, and Special Reference No. 1 of 1998, Re:5 , it is
opined that judicial review lies when there is lack of eligibility or ‘lack of
effective consultation’. Judicial review does not lie on ‘content’ of
consultation.

D 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
E
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
F 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
G 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
3
(2013) 3 SCC 99.
4
(1993) 4 SCC 441.
5
H (1998) 7 SCC 739.
ANNA MATHEWS AND OTHERS v. SUPREME COURT OF 469
INDIA AND OTHERS

executive actions, is eliminated. The reduction of the area of A
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.
B
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 C
of India formed in the manner indicated is sufficient safeguard
and protection 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 D
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
E
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 F
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 G
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:
H
470 SUPREME COURT REPORTS [2023] 1 S.C.R.

A “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
B 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.
C 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).”

7. To further elucidate, we need to state that after the Collegium
of the High Court makes a recommendation for elevation, inputs are
D 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
E 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.
F 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
G 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. 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
H values. This is necessary as the judiciary holds the centre stage in
ANNA MATHEWS AND OTHERS v. SUPREME COURT OF 471
INDIA AND OTHERS

protecting and strengthening democracy and upholding human rights and A
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
B
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.
C
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 to D
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. E
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 F
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 G
every citizen, and more so on every judge, to promote harmony, spirit of
common brotherhood among all transcending religious, linguistic, regional
6
See N. Kannadasan v. Ajoy Khose and Others, (2009) 7 SCC 1.
7
(1992) 2 SCC 428
8
Part IV-A- Fundamental Duties. H
472 SUPREME COURT REPORTS [2023] 1 S.C.R.

A or sectional diversities. 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. 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
B 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.
C
14. The writ petitions are dismissed at the admission stage.

Devika Gujral Writ petitions dismissed.

D

E

F

G

H