In The Light Of Victoria Gowri’s Swearing-in As A Judge, Grounds For Judicial Review Of Her Appointment Still Persist

The two-Judge bench comprising Justice Sanjiv Khanna and B.R.Gavai, which heard the petitioners in Anna Mathew and Others vs Supreme Court of India, on Tuesday, expressed its inability to give a judicial direction to the Supreme Court Collegium to reconsider its January 17 recommendation, based on which the government notified the appointment of Gowri as an Additional Judge on February 6. Even as we await the reasons for the bench’s decision, it will be useful to examine the precedents applicable in this case, taking into account the swearing-in of the Judge as an Additional Judge of the Madras High Court on Tuesday

Is a Judge who has been sworn-in, following her appointment as an Additional Judge, immune from any legal challenge, except through the process of removal as contemplated under the Judges Inquiry Act?

The Supreme Court’s judgment in Shanti Bhushan vs Union of India (2008) is clear that the Supreme Court can interfere with the appointment of a Judge, even after her swearing-in. In this case, the late Shanti Bhushan and advocate, Kamini Jaiswal, filed a writ petition under Article 32 of the Constitution seeking appropriate declaration and issuance of a writ of quo warranto or any other writ or direction quashing the appointment of the late Justice Ashok Kumar of the Madras High Court.

The specific prayers of the petition are of interest, and they read as follows:

• Restrain respondent No.2 (Justice Ashok Kumar) from functioning as a Judge of the Madras High Court
• Direct respondent No. 1 (Union of India) to produce all the records regarding the appointment/re-appointment of respondent No.2 as Additional Judge and also as the permanent Judge; and
• Pass any other or further orders, as this Hon’ble Court may deem fit and proper.

The grievances of the petitioners were that the norms were not followed while appointing Justice Ashok Kumar as a permanent Judge and such appointment was in violation of the law as declared by the Supreme Court in the Second Judges case in 1993.

The bench of Justices Arijit Pasayat and Mukundakam Sharma, which heard the petition, disagreed with the grievance of the petitioners that without consultation with the Collegium, the opinion of the CJI is not legal, while appointing an Additional Judge as a Permanent Judge. But the bench thought it appropriate to grant prayer (b) and examine the records relating to Justice Ashok Kumar’s appointment as Additional Judge and later as a permanent Judge of the Madras High Court.

But at the same time, the bench found considerable substance in the plea of the petitioners that a person who is not found suitable for being appointed as a permanent Judge, should not be given extension as an Additional Judge unless the same is occasioned because of non-availability of the vacancy.

The bench agreed with the petitioners that if a person is unsuitable to be considered for appointment as a permanent Judge because of circumstances and events which bear adversely on the mental and physical capacity, character and integrity or other relevant matters rendering it unwise for appointing him as a permanent Judge, same yardstick has to be followed while considering whether any extension is to be given to him as an Additional Judge.

The bench made it clear that a person who is functioning as an Additional Judge cannot be considered in such circumstances for re-appointment as an Additional Judge. If the factors which render him unsuitable for appointment as a permanent Judge exist, the bench reasoned that it would not only be improper but also undesirable to continue him as an Additional Judge.

The factual matrix in Justice Ashok Kumar case suggests that the Supreme Court found the appointment of a Judge could be challenged within the extremely limited scope of judicial review, permitted under Para 482 of the judgment in the Second Judges case. In Para 482, the Supreme Court’s nine-Judge bench observed as follows:

“This is also in accord with the public interest of excluding these appointments and transfers from litigative debate, to avoid any erosion in the credibility of the decisions, and to ensure a free and frank expression of honest opinion by all the constitutional functionaries, which is essential for effective consultation and for taking the right decision….Except on the ground of want of consultation with the named constitutional functionaries or lack of any condition of eligibility in the case of an appointment, or of a transfer being made without the recommendation of the CJI, these matters are not justiciable on any other ground, including that of bias, which in any case is excluded by the element of plurality in the process of decision-making”.

In Shanti Bhushan, the petitioners raised the ground of want of consultation. In Anna Mathew, the petitioners have raised the ground of lack of condition of eligibility by alleging that a person with pronounced bias against religious groups cannot administer fair and impartial justice, which is a bulwark of our democracy. In Shanti Bhushan, the challenge was to Justice Ashok Kumar’s extension of the term as Additional Judge and later as permanent Judge. But paragraph 482 of the Second Judges case can be relied upon to challenge the appointment of an Additional Judge as well.

In Shanti Bhushan, the bench could not provide relief to the petitioners on the ground that they did not challenge at the time of Justice Ashok Kumar’s extension as Additional Judge three times - first for four months, second time for one year in August 2005 and third time for six more months in August 2006. He was appointed as a permanent Judge by the Government on February 2, 2007, even though all three members of the then Supreme Court Collegium had opposed his appointment as a permanent Judge. Finding that the clock could not be put back, the bench declined relief in this case.

Ironically, the hearing in Anna Mathew before the Supreme Court revealed that the two Judge bench believed that as Justice Victoria Gowri was being appointed as an Additional Judge, the materials against her could be considered at the stage of deciding her confirmation as a permanent Judge.

But if one reads the Supreme Court’s judgment in Shanti Bhushan, such a possibility can be ruled out because once a Judge has been appointed as an Additional Judge, her appointment as a permanent Judge at the end of her two-year tenure does not require consultation with the Supreme Court’s collegium, and therefore, the opportunity for the Supreme Court’s collegium to reconsider its recommendation, on the basis of the fresh material against her, and deny her appointment as a permanent Judge may not arise.

The judgment in Shanti Bhushan makes it clear that while making the recommendations for appointment of an Additional Judge as a permanent Judge, Chief Justice of the High Court is not required to consult the collegium of the High Court. Additionally, there is no requirement of enquiry by the Intelligence Bureau.

The bench in Shanti Bhushan, however, agreed that the rigour of the scrutiny and the process of selection initially as an Additional Judge and a Permanent Judge are not different. The yardsticks are the same. Whether a person is appointed as an Additional Judge or a Permanent Judge on the same date, he has to satisfy the high standards expected to be maintained as a Judge. Additionally, on being made permanent, the effect of such permanency relates back to the date of initial appointment as an Additional Judge, it held.

The Shanti Bhushan bench held: “It is clear from Para 15 (MoP) that at the stage of appointment of either as an Additional Judge or a Permanent Judge, the Union Minister of Law, Justice and Company Affairs is required to consider the recommendation in the light of such other reports as may be available to the Government in respect of the names under consideration. The complete material would then be forwarded to the CJI for his advice. This procedure is not required to be followed when an Additional Judge is appointed as a Permanent Judge. The consultation with members of the Collegium and other Judges, as noted above, is not expressly provided in Para 13.”

The judgment in Shanti Bhushan, however, is a good precedent for the contention that Justice Gowri’s appointment as an Additional Judge could still be challenged on the ground of lack of eligibility despite her swearing-in as a Judge on Tuesday, if it can be shown that the Collegium which recommended her elevation did not consider the adverse materials against her. As the arguments before the bench reveal, the bench simply assumed that the Supreme Court Collegium must have considered all the materials against her, while recommending her for elevation.

In Shanti Bhushan, the bench noted that Justice Ashok Kumar, at the time of the pronouncement of the judgment, was left with only six months of his tenure, before retirement, and with the petitioners’ grievance of lack of consultation with the collegium being not sufficient, the bench thought it fit to decline relief. It is apparent that such a ground is not relevant in the case of Justice Gowri.

In Shanti Bhushan, the bench emphasised that even when an additional Judge is appointed as a permanent Judge, he does not become immune from action, if circumstances so warrant. Whenever materials are brought to the notice of the Chief Justice of India about lack of mental and physical capacity, character and integrity, it is for him to adopt such modalities which according to him, would be relevant for taking a decision in the matter, the bench had held.

There is no justification to suggest that these observations are applicable only to elevating an Additional Judge as a permanent Judge, as the bench had also observed that both Additional and permanent Judges have to satisfy the same high standards expected to be maintained as the Judge.