All relevant facts and political background of Justice L Victoria Gowri were taken into consideration by the Collegium before recommending her elevation as a judge of the Madras High Court, the Supreme Court said on Friday [Anna Mathew and ors vs Supreme Court of India and ors].

A bench of Justices Sanjiv Khanna and BR Gavai also noted that Collegium did not consider it appropriate to withdraw its recommendation on Justice Gowri despite have received representation against appointment of Justice Gowri.

"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 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," the Court said.

The observations were part of the reasoned order delivered on Friday rejecting a plea by lawyers from Madras challenging the recommendation to appoint Justice Gowri.

The Court had dismissed the plea on February 7, Tuesday but gave a reasoned order for the same only on Friday.

The Court in its order of Friday held that judicial review cannot be exercised to quash or order for reconsideration of a Supreme Court Collegium recommendation, based on the suitability of the concerned candidate.

"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 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," the order stated.

Background

Justice Gowri had been in the eye of the storm ever since the Collegium recommended her elevation to the Madras High Court on January 17.

This kicked off discussion in legal circles and on social media about Gowri's credentials and her alleged affiliation to the Bharatiya Janata Party (BJP).

An unverified Twitter account allegedly belonging to Gowri claimed in its bio that she was the National General Secretary of BJP Mahila Morcha.

Pertinently, her remarks against Islam and Christianity, which are available on YouTube, also kicked up a storm.

A petition was then filed before the top court challenging the Collegium recommendation.

The plea raised concerns that she had allegedly exhibited “strong prejudice” against citizens on the ground of their religious affiliation. However, before it could be heard, the Central government cleared her appointment.

The Madras High Court then decided to proceed with the swearing in despite the top court being seized of the plea at the time.

The top court eventually rejected the plea.

The Supreme Court stated in its order that while exercising its power of judicial review, it cannot effectively reconsider or quash Collegium recommendations, as this would be in violation of precedents laid down by the top court.

The Court also noted that the petitioners themselves 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 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," the Court said.

The Court, however, added that the conduct of the judge and her/his decisions must reflect and show independence, adherence to the democratic and constitutional values.

In this regard, the Court stated that 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.

Further, the Court also said that judges are judged everyday by litigants and the public.

"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," the order stated.

Senior Advocates Raju Ramachandran and Anand Grover advocates Sanchita Ain and Srisatya Mohanty appeared for the petitioners.

[Read Order]