The government, just a little over a month before the Supreme Court Collegium recommended advocate Victoria Gowri for Madras High Court judgeship on January 17, 2023, had in the apex court flagged the “compelling need” for a debate to include an “appropriate mechanism” in the Memorandum of Procedure for “assessment of the personality” of candidates under consideration for judicial appointments to constitutional courts.
On December 8 last year, Attorney General R. Venkataramani drew the attention of a Bench of Justices Sanjay Kishan Kaul and AS Oka to a letter written by the government to the Secretary General of the Supreme Court on July 11, 2017.
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This letter highlighted the observations made by two Supreme Court judges in a judgment which sentenced Calcutta High Court judge, C.S. Karnan, to six months’ imprisonment for contempt on July 4, 2017. The incident was the first of its kind in the court’s annals. Mr. Karnan had served as a Madras High Court judge before his transfer to Calcutta.
Justices J. Chelameswar and Ranjan Gogoi, now retired, had observed that Mr. Karnan’s case “brought out the system’s failure of not providing an appropriate procedure for making assessment of the personality of the contemnor [Karnan] at the time of recommending his name for elevation”.
Mr. Venkataramani’s 11-page status report quoted the two judges’ observation that “what appropriate mechanism would be suitable for assessing the personality of a candidate being considered for appointment to be a member of a constitutional court is a matter which is to be identified after an appropriate debate by all concerned — the Bar, the Bench, the state and civil society. But the need appears to be unquestionable”.
The government’s letter, which was sent only days after the Karnan judgment, told the Supreme Court that a “new opportunity” had been created, and there was a “compelling need to make improvements” in the selection process under the Collegium system. The court, according to the government’s status report, never replied to the letter. The Centre said this was one of the reasons why the finalisation of the Memorandum of Procedure for judicial appointments (MoP) was still pending despite the court’s October 2015 direction to the government in the NJAC verdict to “supplement” the MoP in consultation with the Supreme Court to make the selection process “transparent and accountable”.
The order of the court on December 8, 2022 records the contents of the status report. However, the Bench said the “final view of the Supreme Court Collegium” was expressed in the version of the MoP it had sent to the government on March 13, 2017, almost four months before the Karnan case verdict.
“We have endeavoured to emphasise to the Attorney General the undisputed legal position that the MoP is final. That does not mean that if the government suggests some changes or improvements in the MoP, that cannot be looked into. But till that happens, the MoP, as existing, would apply,” the Bench led by Justice Kaul observed in its December 8 order.
On February 7, a Special Bench of Justices Sanjeev Khanna and BR Gavai defended the scrutiny process of the Collegium system as “fairly robust”. The Bench surmised that the Collegium “must have” known about the social media utterances of Ms. Gowri, which the petitioners said amounted to “hate speech”, before recommending her for appointment as an Additional Judge of the Madras High Court.
Justices Khanna and Gavai did not entertain the petitioners’ plea to take “judicial notice” of a statement made by Chief Justice of India D.Y Chandrachud, who headed the Collegium which recommended Ms. Gowri, in open court proceedings on February 6 that “developments” regarding her were not known to the Collegium when they had approved her.
