Justice Lekshmana Chandra Victoria Gowri took oath as an Additional Judge of the Madras High Court on February 7, leaving in her wake a pulsating question directed at the Collegium system of judicial appointments, during a time when it is under attack.
The chain of events
The Supreme Court Collegium recommended the elevation of advocate Gowri (as she was then) as a judge of the Madras HC on January 17. A group of 21 lawyers, shot off a communication to the President and the Collegium on February 1 and February 2, respectively, accusing her of making public utterances amounting to hate speech on social media. The petitions alleged that Justice Gowri had in two interviews on YouTube in 2018 launched into a “shocking, distasteful diatribe”. They said her interviews were peppered with communal statements.
They sought an interim order like in the case of Sri Kumar Padma Prasad versus Union of India in 1992 when the apex court had restrained a judicial appointee to 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 initially listing the case on February 10, it was advanced to February 7 as by then Law Minister Kiren Rijiju had tweeted her appointment as judge.
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The oath-taking ceremony was scheduled at 10:35 am on February 7. While the petitioners’ lawyers were summoned to Chief Justice Chandrachud’s court at 9.15 am on the same day, a Bench comprising of Justices Sanjiv Khanna and B.R. Gavai dismissed the petitions in a 25-minute hearing. A nine-page order published on February 10 reasoned that judicially reviewing a Collegium recommendation would “violate the law and amount to evaluating and substituting the decision of the Collegium with individual or personal opinion on the suitability and merits of the person”.
Eligibility versus suitability
The petitioners, represented by senior advocate Raju Ramachandran and advocate Sanchita Ain, quoted the Supreme Court’s own 2009 case of Mahesh Chandra Gupta versus Union of India, which had held that questions of eligibility of a candidate and effective consultation for appointment as a HC judge under Article 217(2) of the Constitution, was open to judicial review. They argued before Justices Khanna and Gavai that the Constitution Bench in its 2015 NJAC judgment had observed that “the consultation process in the Collegium takes into consideration not only the nature of practice and standing at the Bar, but all the background materials to show the eligibility and fitness of the candidate”.
They contended that the decision-making process was “stymied” as the Collegium did not have full information about Justice Gowri’s “vitriolic comments”. Mr. Ramachandran argued that her social media utterances revealed a strong prejudice that would threaten access to justice. Absence of prejudice was the essence of an independent judiciary and she had made herself ineligible for judicial office. The Bench responded that the scrutiny process was “fairly robust” and included taking the opinion of consultee judges in the Supreme Court and the High Courts.
Its order said whether a person was “fit” to be appointed as a judge essentially involved the aspect of “suitability” and not “eligibility”. Aspects of suitability stood excluded from the purview of judicial review.
The Bench distinguished between ‘suitability’ and ‘eligibility’ of a candidate zeroed in for HC judgeship. Eligibility was based on “objective factors” given in Article 217(2) of the Constitution like citizenship and 10 years’ experience as a judicial officer or a lawyer in a High Court.
The suitability of a candidate was the domain of the Collegium as it involved a procedure “designed to test the fitness of a person, including her character, integrity, competence, knowledge and the like”.
On hate speech
The petitioners pointed out that Ms. Gowri, who was a senior standing counsel for the central government from 2015 until 2020 and later an Assistant Solicitor General, was affiliated to the ruling Bharatiya Janata Party. She had described herself as “Chowkidar Victoria Gowri” in her Twitter handle, which was “now removed”. Justice Khanna said there had been HC and SC judges with political antecedents and that an advocate’s political leanings did not disqualify her from being appointed a judge. Justice Gavai recounted the examples of Supreme Court judges like Justice Krishna Iyer, Justice KS Hegde, who was a Lok Sabha Member, Justice Aftab Alam, Justice PB Sawant’s association with the Peasants and Workers Party, former Delhi High Court Chief Justice Rajinder Sachar, etc.To this, Mr. Ramachandran argued that political background was not the “question here at all.... It is hate speech that matters here. You may be a member of a political party, but hate speech by that member ran antithetical to the tenets of the Constitution and renders you unfit to take oath as a judge”.The petitioners said Justice Gowri’s statements “reveal her revulsion against certain protected religious communities in our country”. Their petition referred to the Supreme Court Advocates-on-Record Association versus Union of India of 1993 which had observed that “justice without fear or favour, ill-will or affection, is the cardinal creed of our Constitution and solemn assurance of every judge to the people of this great country”. They referred to the Supreme Court’s 2009 judgment in N. Kannadasan versus Ajoy Khose which said “a judge must have these basic qualities and, thus, must be found to possess the same”. Mr. Ramachandran submitted that “strong communal bias” like prior conviction for a crime and undischarged insolvency, disqualified at the very threshold a person from appointment as a HC judge under Article 217(2) of the Constitution.
But the Bench said that “the fact of the matter is all these matters must have been placed before the Collegium… it is not that the Collegium was not aware. If there was anything, they would have reconsidered… Can you show such a lack of respect to the Collegium?”. Dismissing the case, the court said, “We don’t think we will be able to pass any orders at this stage… We will be setting a very wrong precedent.”
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