Two different views emerge from within the Supreme Court on what the Collegium considered before recommending advocate Victoria Gowri for appointment as an Additional Judge of the Madras High Court in its resolution on January 17.
On February 6, when petitioners senior advocate R. Vaigai and Anna Mathew made an “extraordinary” mentioning of their challenge to Ms. Gowri’s appointment on the ground that she had made public utterances on social media amounting to “hate speech”, Chief Justice of India D.Y. Chandrachud orally stated in open court that these “developments” were brought to the attention of the Collegium headed by him after it had “formulated” its January 17 recommendation for her appointment as judge. Chief Justice Chandrachud heads the Collegium.
“There are certain developments which have taken place, in the sense that the Collegium has taken cognisance of what is drawn or came to our notice after we formulated our recommendation on the basis of the proposal of the Chief Justice of the High Court,” the CJI said. The hearing of the case was advanced to Tuesday.
However, on February 7, a Special Bench of Justices Sanjiv Khanna and B.R. Gavai, responding to arguments that Ms. Gowri’s utterances were “hate speech pure and simple”, verbally observed that her comments date back to 2018 and there was no reason to “presume” that the Collegium would not have known about them. “The fact of the matter is all these matters must have been placed before the Collegium… It was not that the Collegium was not aware. If there was anything, they would have reconsidered,” Justice Khanna tried to allay apprehensions.
The cardinal question in the case was whether the Supreme Court Collegium, before making the recommendation, was in the know about the “hate speech” remarks the petitioners allege Ms. Gowri had made on social media.
The January 17 Collegium recommendation merely lists Ms. Gowri and four other advocates for appointment as judges of the Madras High Court. The Collegium resolution does not mention receiving any material or objections from the government about her social media posts.
But a separate Collegium resolution on the same day, January 17, reiterating its recommendation to appoint advocate R. John Sathyan as a Madras High Court judge, discusses in detail the government’s objections to his social media posts. The Collegium resolution flags the adverse comments of the Intelligence Bureau (IB) about Mr. Sathyan sharing articles critical of Prime Minister Narendra Modi, and another concerning the death of a National Eligibility cum Entrance Test (NEET) aspirant in 2017. The Collegium, after going through the objections, made an informed decision that the social media posts did “not impinge on the suitability, character or integrity of Shri Sathyan”.
The very next day, on January 18, the Collegium again records in detail the government’s objections to the candidature of advocate Somasekhar Sundaresan in its resolution as a “highly biased opinionated person” who is “selectively critical on social media on the important policies, initiatives and directions of the government”.
The Collegium resolution, while reiterating its recommendation of Mr. Sundaresan for judgeship in Bombay High Court, notes that the “expression of views by a candidate does not disentitle him to hold a constitutional office so long as the person proposed for judgeship is a person of competence, merit and integrity”.
Senior advocate Raju Ramachandran, for petitioners, indicated on Tuesday how the government had taken the trouble to unearth the social media posts of Mr. Sathyan and Mr. Sundaresan. Senior advocate Anand Grover, also for petitioners, submitted that the IB may not have “enclosed” the “full information” about Ms. Gowri’s comments.
Mr. Ramachandran noted that while judges from various political backgrounds, even of “conservative or radical persuasions”, add to the “richness of judicial discourse”, hate speech, which is “antithetical to the values of the Constitution”, would render a candidate unfit or ineligible for taking the oath of judicial office.