Victoria Gowri Case : Has Supreme Court Ever Quashed HC Judge's Appointment Before Oath-Taking? Yes, Only Once

In the entire history of the Supreme Court, there is only a single precedent of it quashing an appointment of a High Court judge, after finding that the person recommended was ineligible. That extraordinary action happened in the 1992 case Kumar Padma Prasad vs Union Of India And Ors 1992 2 SCC 428, where the Supreme Court quashed the appointment of one K.N. Srivastava as a judge of the Gauhati High Court, before he took oath.

This 1992 precedent has been cited to challenge the appointment of Advocate L Victoria Gowri as a judge of the Madras High Court. Senior Advocate Raju Ramachandran, appearing for petitioners who challenge Gowri's appointment on the ground that she has made hate speeches against religious minorities, referred to Kumar Padma Prasad case while mentioning the petition before Chief Justice of India DY Chandrachud for urgent listing.

The controversy in the 1992 case arose after a section of the bar objected to the appointment of Srivastava- who was mired in corruption allegations- on the ground that he has never practised as an advocate and has never held a judicial office. So, the contention was that he did not satisfy the basic eligibility prescribed under Article 217 of the Constitution to be a High Court judge. Srivastava was actually a Secretary level officer in the Law & Judicial Department of the Mizoram Government and in that capacity was a member of certain Tribunals and Commissions.  When a lawyer filed a writ petition challenging his appointment, the Gauhati High Court through an interim order directed that the President's warrant of appointment for Srivastava should not be given effect to. The High Court further directed the Central Government to reconsider his appointment. The case got ultimately transferred to the Supreme Court.

Taking note of the peculiarity of the case, the Supreme Court stated :

"It is for the first time in the post-independent era that this Court is seized of a situation where it has to perform the painful duty of determining the eligibility of a person who has been appointed a Judge of High Court by the President of India and who is awaiting to enter upon his office".

Though there were allegations of corruption and misappropriation of funds against Srivastava, the Court did not go into those aspects and decided the matter on the legal issue whether the post held by him can be regarded as a "judicial office" within the meaning of Article 217(2)(a) of the Constitution. The 3-judge bench comprising Justices Kuldip Singh, PB Sawant and NM Kasliwal found that Srivastava was holding a post under the control of the Executive and hence it was not a judicial office.

"We have further no material before us to show that Srivastava in fact presided over any court and conducted any trial or decided any civil cases...", the Court noted while quashing the appointment of Srivastava as a judge of the Gauhati High Court. So that there is room for any ambiguity, the Court further directed the Union of India and other respondents not to administer oath or affirmation under Article 219 of the Constitution to him. Further, the Court restrained him from making and subscribing an oath or affirmation in terms of Article 219 of the Constitution of India and assuming office of the Judge of the High Court. Perhaps, the extraordinariness of the situation forced the Court to state and re-state in so many words that he cannot be appointed as a judge, regardless of the President's warrant for appointment.

In Victoria Gowri's case, the petitioners are relying on this precedent to show that the doors of judicial intervention are not closed just because the appointment order for the judge has been issued. It is relevant to note that the Union Law Minister tweeted today noon that the Centre has appointed Victoria Gowri and some others as additional judges.  

While agreeing to list the matter tomorrow, CJI DY Chandrachud disclosed that the Supreme Court collegium has taken cognizance of the complaints made against Gowri, which came to its notice after her name was recommended. Ramachandran argued that certain "vital information" was kept back from the collegium and hence the recommendation was made without an effective consultation.

Another interesting aspect is that the Kumar Padma Prasad happened during the pre-collegium era. So if a judicial intervention happens in the Victoria Gowri case, it will be the very first instance of the Supreme Court on its judicial side ruling against a recommendation made by its collegium, in the light of subsequent materials discovered.