THE SAGA OF APPOINTING JUSTICE VICTORIA GOWRI

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 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.
• 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 contended that the decision-making process was “stymied” as the Collegium did not have full information about Justice Gowri’s “vitriolic comments”.
• 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”.

SOURCE: THE HINDU, THE ECONOMIC TIMES, PIB