In its reasons for rejecting on February 7, the petitions seeking ex parte injunction against the swearing-in of Justice L.C. Victoria Gowri as a Judge of the Madras High Court, the Supreme Court’s two judge bench, comprising Justice Sanjiv Khanna and Justice B.R.Gavai, has on Friday, rejected the argument of the petitioners that the facts were not known and considered by the Collegium....
In its reasons for rejecting on February 7, the petitions seeking ex parte injunction against the swearing-in of Justice L.C. Victoria Gowri as a Judge of the Madras High Court, the Supreme Court’s two judge bench, comprising Justice Sanjiv Khanna and Justice B.R.Gavai, has on Friday, rejected the argument of the petitioners that the facts were not known and considered by the Collegium. The bench inferred this from the conduct of the Collegium of the High Court and the Supreme Court, saying they did not deem it appropriate to withdraw the recommendation or recall their decision, after the petitioners’ representation dated February 1, 2023.
While it is true that the Collegium could have kept its recommendation on hold following the receipt of February 1 representation, the bench did not take note of the CJI, D.Y.Chandrachud’s telling Mathew’s counsel, Raju Ramachandran, in open court that the Collegium was considering the representation. Taking judicial notice of this exchange between the CJI and Ramachandran in open court could have meant deference to the Collegium, rather than disrespect to it, as the bench seems to have inferred. It is possible that the Collegium was in the process of obtaining further information on this, before deciding to keep its recommendation on hold.
The prayers
It is true that the petitioners had sought quashing of the Collegium’s recommendation as void for lack of effective and informed consultation under Article 217 of the Constitution. They had also sought a declaration that Justice Gowri was disqualified for being considered for the appointment as a Judge of the High Court and consequently to formulate and publish guidelines for eligibility and suitability for considering candidates for appointment as Judges of High Courts. They also sought a declaration that Justice Gowri’s appointment was null and void. They sought these reliefs apart from an ad interim ex-parte stay on her swearing-in as a Judge and calling for all the records and materials in connection with the recommendation. However, it goes without saying that the bench could grant the larger reliefs, if at all, only if the scrutiny of the materials by it confirmed the allegations.
The bench’s own reasoning makes it clear that Article 51A of the Constitution casts an obligation on every citizen, and more so on every judge, to promote harmony, spirit of common brotherhood among all transcending religious, linguistic, regional or sectional diversities. The bench also holds that the principle of secularism and dignity of every individual - regardless of the religion, caste or creed, is the foundation of Rule of Law and equal protection of laws.
Ironically, however, the bench concludes that these values are relevant only at the time of confirmation of a Judge (impliedly at the time of appointment as a permanent Judge and not as an Additional Judge). “Not only is the conduct of judgments delivered considered at the time of confirmation, a judge is judged everyday by the lawyers, litigants and the public, as the courts are open and the judges speak by giving reasons in writing for their decisions”, they wrote, while dismissing the petitions at the admission stage.
N.Kannadasan vs Ajoy Khose
In Paragraph 8, the bench agrees that the conduct of the judge and her/his decisions must reflect and show independence, adherence to the democratic and constitutional values. “This is necessary as the judiciary holds the centre stage in protecting and strengthening democracy and upholding human rights and Rule of Law”, the bench held by making a reference in the footnotes, to the Supreme Court’s 2009 judgment in N.Kannadasan vs Ajoy Khose and Others.
Curiously, however, the bench ignored the principle laid down in N.Kannadasan, in which the present petitioner, Anna Mathew was also one of the petitioners. That judgment, pronounced by Justice S.B.Sinha and Justice Mukundakam Sharma, on March 6, 2009, is an authority for the proposition that eligibility of a Judge of a High Court should not be construed in a pedantic manner. “It in the context of a large number of decisions of this court including S.P.Gupta must also be held to include suitability of a person concerned. For the aforementioned purpose, the principles of purposive interpretation is required to be resorted to”, the bench had held.
In N.Kannadasan, the issue was whether an Additional Judge of the Madras High Court who was not confirmed as a permanent Judge, was eligible to be considered for the post of President of the State Consumer Disputes Redressal Commission. The then Chief Justice of the Madras High Court had recommended Kannadasan’s appointment as the President of the Commission.
Both the Madras High Court and the Supreme Court held in this case that the court was not required to consider the person’s suitability. The High Court, however, held that Kannadasan was not entitled to be considered for the post of the president of the commission because his tenure as Additional Judge was not confirmed on the basis of the allegations touching upon his integrity and honesty. The High Court concluded that the High Court’s Chief Justice’s recommendation was vitiated because all the relevant records relating to Kannadasan’s non-appointment as a permanent judge were not placed before him. More important, the High Court concluded so after perusing the records.
Agreeing with the High Court, the Supreme Court held in this case that the superior courts must take into consideration as to what is good for the judiciary as an institution and not for the judge himself. An act of balancing between public interest and private interest must be made, it observed.
More important, the bench relied on the Supreme Court’s judgments in the First Judges case (S.P.Gupta), and Second Judges case (Supreme Court Advocates-on-Record Association, 1993), to hold that the reason for non-appointment of an Additional Judge keeping in view the materials on the basis whereof the constitutional functionary , viz., the Chief Justice of the High Court, the State Government, the collegium of the Supreme Court as also the Central Government and ultimately the President of India had arrived at a decision would be a relevant factor.
More relevant, the Supreme Court did not hold in this case that these principles are relevant only in the case of confirmation of a judge, already appointed as an Additional Judge, as a permanent Judge.
Mahesh Chandra Gupta vs Union of India
On Friday, the Sanjiv Khanna-B.R.Gavai bench extensively quoted from Mahesh Chandra Gupta vs Union of India, a case also decided by another two-Judge bench, on July 6, 2009. This judgment, delivered by a bench of Justice S.H.Kapadia and Justice Aftab Alam, did not take note of the previous ruling in N. Kannadasan, delivered only four months ago. In this case, the Supreme Court rejected a challenge to the appointment of Dr.Satish Chandra, as Additional Judge of Allahabad High Court.
Mahesh Chandra Gupta is useful for the proposition that the process of judging the fitness of a person to be appointed as a High Court judge falls in the realm of “suitability”. The Supreme Court held in this case that Article 217(1) of the Constitution deals with the suitability of a person, while Article 217(2) deals with the “eligibility” of a person to become a Judge. While eligibility is an objective factor, suitability is subjective. The bench held that the question as to who should be elevated, which essentially involves the aspect of “suitability” stands excluded from the purview of judicial review.
Significantly, the bench held in Mahesh Chandra Gupta that once there is consultation, the content of that consultation is beyond the scope of judicial review, though lack of effective consultation could fall within the scope of judicial review. This, the bench held, is the basic ratio of the judgment of the Constitution bench in the Third Judges case (1998).
It is relevant to point out that the bench in Mahesh Chandra Gupta came to its conclusion only after meticulous scrutiny of the confidential files that the content of the Report submitted by the Sub-Committee containing information regarding lack of actual practice as an Advocate of the High Court and the working of Dr.Satish Chandra as a Member of the Income Tax Appellate Tribunal during his nascent years in office was before the Supreme Court collegium, albeit from a different channel.
That information, the bench claimed, was meticulously vetted and the recommendation of the High Court collegium for appointment was sent back by the Supreme Court Collegium to the Hihg Court Collegium for reconsideration. The matter was re-examined by the High Court Collegium, the bench underlined. That Collegium, it said, reiterated its position and recommended once again Dr.Satish Chandra’s name, for appointment as a High Court Judge, the bench pointed out. On facts, therefore, the bench held that there was effective consultation. Since the consultation process stood complied with, its content was not amenable to judicial review, the bench emphasised.
On Friday, however, the Supreme Court bench appears to have misread the pleas of the petitioners in Justice Gowri’s case. The petitioners, as in Mahesh Chandra Gupta, did not seek judicial review of the content of alleged hate speech of Justice Gowri before her appointment. They only sought to know whether the High Court and the Supreme Court Collegiums were aware of it. This involves a finding of facts, which could be ascertained only by calling for the records, and their examination. Sadly, the bench did not consider this plea at all in its reasons.
The petitioners did not seek the two-Judge bench to pronounce on whether the alleged remarks of Justice Gowri before her elevation constituted hate speech, which made her ineligible for the high office. The petitioners were aware of the distinction between the terms, eligibility and suitability, and therefore, were emphatic that the allegations that she was guilty of hate speech touched on eligibility, as her views betray lack of adherence to the constitutional values, such as secularism, liberty of thought, expression, belief, faith and worship, equality and fraternity. Also, the petitioners were aware that only the High Court and the Supreme Court collegium – and not the bench – which could examine the eligibility and suitability of the candidate being considered for appointment as a Judge.
The petitioners only prayed that the bench should examine whether the High Court and the Supreme Court Collegiums considered the alleged materials constituting hate speech, by calling for the official records. Had such material been placed, the same would have revealed her ineligibility to be appointed as a judge of a High Court, they claimed in their petition. Going by its own precedents cited in its reasons, the Supreme Court could have called for the official records to ascertain this fact.
The petitioners argued that on appointment as a judge, a person has to take an oath or affirmation as mentioned in the Third Schedule of the Constitution to the effect that they will bear true faith and allegiance to the Constitution of India as by law declared and perform duties of office without “fear” or “favour”, “affection” or “ill-will”. A person with pronounced bias against religious groups cannot administer fair and impartial justice, which is a bulwark of our democracy, they submitted. The bench, on Friday, did not disagree with this submission. Yet, it did not consider it serious enough to rule out that the materials allegedly pointing to such pronounced bias were not placed before the Collegium before its recommendation.