A Constitution is the basic law that lays the foundation for the governance of a country. It lays down broad policy/directives for the authorities and institutions tasked with its implementation.
Basic eligibility criteria for appointment to several high constitutional offices are prescribed in the Constitution. Yet, many silent disqualifications operate. These are implied and read into the eligibility criteria by courts, solely guided by the objective of upholding the Constitution and the law and the integrity of the institution for which the functionary is chosen.
Importing a disqualification
In B.R. Kapur v. State of Tamil Nadu (2001), the Governor’s appointment of Jayalalithaa as Chief Minister despite her conviction for a criminal offence was called in question. Article 164(1) of the Constitution does not prescribe any disqualification for the appointment of a Chief Minister. Article 173, however, disqualifies a person with prior conviction from being a member of the Legislature. The court was confronted with the question of whether it could import a disqualification for a person being appointed as a Chief Minister, when none was prescribed. The Supreme Court said yes. It held, “The will of the people as expressed through the majority party prevails only if it is in accord with the Constitution. The Governor... is sworn to preserve, protect and defend the Constitution and the laws (Article 159). The Governor cannot... do anything that is contrary to the Constitution and the laws.” The Governor’s act of administering oath to Jayalalithaa after her conviction was declared unconstitutional.
The oath to be taken by a judge of a High Court under Schedule III of the Constitution requires a declaration of allegiance to the Constitution and performance of duties “without fear or favour, affection or ill-will”. The appointee must also declare that she will “uphold” the Constitution and the laws. Such an oath is unique to the judges of the High Court and the Supreme Court, since they are the sentinels of the Constitution. The oath is a solemn assurance to the people that justice will be rendered without any bias. Does not a person who has shown religious bigotry become disabled from discharging the oath of office of a judge? Will such disability fall within the realm of mere suitability or essential eligibility?
Adhering to the oath
“Eligibility of a judge of a High Court should not be construed in a pedantic manner,” declared the Supreme Court in N. Kannadasan v. Ajoy Khose (2009). An additional judge of the High Court, who was not appointed as a permanent judge due to allegations of lack of probity, was later recommended by the then Chief Justice of the Madras High Court for appointment as president of the State Consumer Commission. The appointment was declared illegal by the Supreme Court, which held that an independent and impartial judiciary should be manned by persons who dispense justice “without fear or favour, ill-will or affection.” It held that a person who lacked the qualities necessary to adhere to the oath of office of a judge was ineligible for appointment to any judicial office. Thus, the capacity to dispense justice in terms of constitutional oath was held to be non-negotiable.
Inability to adhere to the Constitution as per the oath prescribed has been held to be a disqualification by a full Bench of the Madras High Court in the case of K.S. Haja Shareef (1983), who, after taking oath as a member of the Assembly to “bear true faith and allegiance to the Constitution,” accepted appointment as Honorary Consul General of Turkey at Madras. On such appointment, he had agreed to abide by the directives of a foreign State. The court held that such a person cannot be expected to be a member of the Legislature since a conflict of interest between the two countries would arise and the constitutional oath will prevail to unseat him.
Selection of judges
To limit ‘eligibility’ for appointment of a High Court judge to a minimum of 10 years of legal practice prescribed in Article 217(2) makes a mockery of the integrity and independence of the judiciary. Such a facile reading turns the solemn assurance of an impartial and fair judiciary into a hollow promise. Just as breach of the oath will result in removal, adherence to the Constitution should precede taking the oath of office.
Faced with opacity in judicial appointments/ transfers, the Supreme Court in S.P. Gupta v. Union of India (1981) directed the Government and the Chief Justice of India (CJI) to disclose all the materials. The judges held that their constitutional duty demanded such scrutiny through judicial review. They also held that if on scrutiny it was found that all the materials were not before the CJI (now collegium), the consultation/ selection process is defective and invalid.
The events leading up to the pronouncement of the Supreme Court regarding the selection of Justice Victoria Gowri reveal the fault lines between the government and the judiciary. The selection process came under a cloud once the CJI expressed in open court that materials now brought before the collegium were not available earlier. The collegium relies on the government’s agencies to produce background materials of persons recommended to be judges. Transparency and accountability in the selection of judges alone will ensure an independent judiciary. The Preamble to the Constitution should permeate selection of every judge.
