JJustice Lekshmana Chandra Victoria Gowri was sworn in as an additional judge of the Madras High Court on February 7, leaving behind a throbbing issue targeting the Collegium’s system of judicial appointments at a time when it is under attack.
The chain of events
The Supreme Court collegium recommended the elevation of Advocate Gowri (as he then was) as a judge of the Madras HC on January 17. A group of 21 lawyers sent a notice to the president and the collegium on February 1 and February 2, respectively, accusing her of making public statements that constitute hate speech on social media. The petitions allege that Justice Gowrie in two YouTube interviews in 2018 launched a “shocking, nasty criticism”. They said her interviews were peppered with general statements.
They sought an interim order as in the case of Shri Kumar Padma Prasad v. Union of India in 1992 when the Supreme Court prevented a judicial appointee of the Gauhati High Court from taking oath and assuming office as a judge.
Chief Justice Chandrachud made an oral statement in open court that these “developments” came to the notice of the collegium after the recommendation was “formulated”. After the case was initially listed on February 10, it was adjourned to February 7 as Justice Minister Kiren Rijiju tweeted his appointment as a judge by then.
The swearing-in ceremony was scheduled for 10:35 a.m. on February 7. While the petitioners’ lawyers were summoned to the court of Chief Justice Chandrachud at 9:15 am on the same day, a bench comprising Justices Sanjiv Khanna and BR Gavai dismissed the petitions in a 25-minute hearing. A nine-page order published on February 10 argued that judicial review of the Board’s recommendation would “violate the law and would amount to evaluating and replacing the Board’s decision with an individual or personal opinion as to the suitability and merit of the individual.”
Eligibility vs. Suitability
The petitioners, represented by senior advocate Raju Ramachandran and advocate Sanchita Ain, cited the 2009 Supreme Court case. Mahesh Chandra Gupta v. Union of India, which held that questions of candidate eligibility and effective consultation for appointment as a SC judge under Article 217(2) of the Constitution were open to judicial review. They argued before Justices Khanna and Gavai that the Constitution Bench in its 2015 NJAC judgment had observed that “the process of consultation in the Bar takes into account not only the nature of the practice and the standing of the Bar but also all the underlying materials for to demonstrate the applicant’s eligibility and fitness”.
They claimed that the decision-making process was “stymied” because the collegium did not have full information about Justice Gowri’s “cruel comments”. Mr Ramachandran argued that her statements on social media revealed strong prejudice which would jeopardize access to justice. Absence of prejudice is the essence of an independent judiciary and she has made herself ineligible for judicial office. The bench responded that the vetting process was “relatively robust” and involved taking the views of consulted judges in the Supreme Court and High Courts.
Its order states whether a person is “fit” to be appointed as a judge, which essentially involves the aspect of “suitability” rather than “admissibility”. Aspects of fitness were excluded from the scope of judicial review.
The court distinguished between ‘eligibility’ and ‘electability’ of a candidate referred to an HC judge. Eligibility was based on “objective factors” set out in Article 217(2) of the Constitution, such as citizenship and 10 years’ experience as a judicial officer or advocate in the Supreme Court.
The suitability of a candidate was the province of the College as it involved a procedure “designed to test a person’s suitability, including his character, integrity, competence, knowledge and the like”.
About hate speech
The petitioners pointed out that Ms Gowri, who was senior standing adviser to the central government from 2015 to 2020 and later assistant attorney general, was associated with the ruling Bharatiya Janata Party. She had described herself as “Chowkidar Victoria Gowri” on her Twitter account, which has “now been removed”. Justice Khanna said there were HC and SC judges with political antecedents and the lawyer’s political leanings did not disqualify her from being appointed as a judge. Justice Gavai narrated the examples of Supreme Court judges like Justice Krishna Iyer, Justice KS Hegde who was a member of the Lok Sabha, Justice Aftab Alam, Justice PB Sawant’s association with the Peasants and Workers Party, former Chief Justice of High Court of Delhi Rajinder Sachar and others. .In response, Mr. Ramachandran argued that political background was not at all “the issue here… Hate speech matters here. You may be a member of a political party, but hate speech by that member is against the principles of the Constitution and makes you unfit to take oath as a judge.” The petitioners said Justice Gowri’s statements “reveal her distaste for some protected religious communities in our country”. Their petition refers to Supreme Court Bar Association v. Union of India of 1993, which noted that “justice without fear or favor, malice or affection is the fundamental creed of our constitution and the solemn assurance of every judge before the people of this great country.” They cited the Supreme Court’s 2009 judgment N. Kannadasan v. Ajoy Khose which says that “a judge must possess these essential qualities and must therefore be found to possess the same”. Mr. Ramachandran argued that “strong public bias”, such as a previous criminal conviction and undischarged insolvency, disqualifies a person at the very threshold for appointment as a Supreme Court judge under Article 217(2) of the Constitution.
But the bench said that “the fact of the matter is that all these questions should have been put before the collegium… it is not that the collegium was not aware. If there was something, they would think… Is such disrespect for the College possible?”. Dismissing the case, the court said: “We do not think we will be able to issue any orders at this stage … We would set a very wrong precedent.”