Victoria Gowri’s Elevation Exposes Centre’s Double Standards & Collegium’s Fiasco

A person who has a record of making deeply problematic communal statements is now a High Court judge. The appointment of Victoria Gowri as an additional judge of the Madras High Court will remain an ignoble chapter in the Indian judicial history. It raises troubling questions at the efficacy of the selection process- which boasts of consultations at multiple levels - in picking up the suitable persons.

When the Supreme Court on its judicial side has been repeatedly cautioning against hate-speech, its own collegium recommended the appointment of a person, who has a history of attacking other religions(for detailed reading, this article can be referred). Yes, one can presume that the collegium may not have been aware of her public utterances at time of making the resolution (although a search in Google and social media would have retrieved her statements and articles).

The disclosure of Chief Justice of India DY Chandrachud yesterday that the collegium has taken cognizance of the materials against Victoria Gowri, which came to its notice later, might have been a face-saving exercise. A judicial intervention after the notification of appointment is  extremely difficult(the only precedent is from the pre-collegium times). The utter confusion and high-drama which preceded the hearing of the petition today reflects poorly on the Supreme Court, perhaps making one wonder whether the Court was actually serious about hearing the matter. It is puzzling that the matter was initially assigned to a bench having Justices MM Sundresh(a judge hailing from Tamil Nadu who was consulted by the collegium in the matter). So a change in the bench due to the inevitable recusal of Justice Sundaresh was foreseeable. The petitioners were assured that the matter will be heard at 9.15 AM, well ahead of the swearing-in ceremony at the Madras High Court. But that did not happen. After making the petitioners wait for over an hour and a quarter, the matter was heard a little ahead of 10.30 AM by a bench comprising Justices Sanjiv Khanna and BR Gavai, two prospective CJIs.

The Supreme Court hearing ended up as an exercise in futility, as many apprehended, given that Gowri took oath in the meantime. The advocates, who took great professional risk by filing the writ petitions, at least deserved a proper and effective hearing before the swearing-in ceremony took place at the Madras High Court. The Madras High Court too did not find it appropriate to postpone the ceremony at least for a few hours, in deference to the Supreme Court hearing, and notified the ceremony at a curious time of 10.35 AM. While the hearing was in progress, Acting Chief Justice of Madras High Court (who is continuing in Madras HC thanks to the Centre not notifying his transfer recommended by the collegium) administered the oath to Gowri.

The SC bench observed it cannot presume that the collegium did not take note of the materials against Gowri. “The materials are of speeches from 2018….the collegium must have gone through”, the bench commented during the hearing, expressing its difficulty in interfering with a decision made by the collegium.

Before dismissing the Madras HC lawyers’ petition, the bench offered a consolation that she is only an additional judge, implying that the materials against her could be considered at the stage of deciding her confirmation. That is two years down the line. Should the system suffer an unfit judge for that long?

Centre's double standards

The episode also exposes the double-standards of the Central Government, which might be feeling a sense of delight at the collegium’s fiasco. The Centre has put on hold the appointment of John Sathyan as a Madras High Court judge, on the ground that he has shared an article critical of the Prime Minister. When it came to Victoria Gowri, who has an open affiliation with the ruling party and has even used Prime Minister’s 2019 election campaign word in her now deleted Twitter handle, the Centre was happy to notify her appointment within a few weeks. The Supreme Court collegium had on January 17 reiterated John Satyan’s name, rejecting the Centre’s objections. While doing so, the collegium had made a specific proposal that he should be given precedence over the other recommendations made on the same day for Madras HC, which included Gowri’s name. However, brazenly ignoring this proposal of collegium, the Centre notified the first time recommendations, putting on hold the reiterated name of John Satyan. That the Central Government, which has sent back proposals on reasons ranging from sexual orientation to social media posts of candidates, did not deem it necessary to return Gowri’s proposal to give collegium an opportunity to look at the new materials gives a distressing signal that it welcomes candidates with such views.

Also, while approving the name of Victoria Gowri and four others, the Centre split up the collegium resolutions of January 17, which recommended the elevation of five advocates and three judicial officers. The Centre has only notified the elevation of 3 advocates and 2 judicial officers, ignoring the Supreme Court’s disapproval of the practice of segregating collegium resolutions. Recently also, the Supreme Court bench led by Justice Kaul disapproved of the practice of Centre cherry picking names out of the same resolution, as it disrupts the seniority intended by the collegium. Here, the Centre has not approved the first name in the January 17 resolution, as a result of which Victoria Gowri, whose name was at number 2, became the senior most in the present batch of appointments.

Collegium's blindspots

The episode also reveals the limitations of the collegium system in completely relying on the executive arm for gathering inputs about a candidate. The consultation with the judges will yield inputs about the professional competence of the candidate. However, for gathering information on other aspects, the collegium goes by IB reports. In this case, one can make an inference that the IB reports did not mention about the articles and speeches of Gowri, in the light of the disclosure made by the CJI yesterday. It is also curious that the IB, which flagged an article shared by another candidate which was critical of the PM, could not detect the articles and YouTube videos of Gowri. Perhaps it is high time the collegium rethinks the sole reliance on executive to gather inputs about suitability of a candidate, lest it is blindfolded into making wrong picks. Also, perhaps it is time the collegium thinks of setting up an independent secretariat for background check of candidates- a major reform measure suggested by several lawyers after the NJAC verdict. The whole fiasco is an eyeopener that the great opacity with which the collegium is doing the deliberations is not always leading to the suitable candidates and a certain degree of public scrutiny before the final resolution will compensate for the blindspots of the collegium.