On First Principles, SC Collegium’s Recommendation To Elevate A Party Leader As A High Court Judge May Be Flawed

One such first principle is that candidates, who openly owe allegiance to political parties, ought not to be considered for elevation to the High Court Benches. This is not to suggest that membership of a political party is itself a legal disqualification for eligibility as a judge. Indeed, there is a thin line which distinguishes political neutrality of those who give up party affiliations on the eve of their assumption of duties of a constitutional office, which expects its incumbent not only to be impartial, but seen to be so, and those who don’t.

The Speaker’s office is one such, which gives an option to the incumbent to voluntarily renounce her party membership, by reason of her election to such office. The exemption is provided under Paragraph 5 of the Tenth Schedule to the Constitution, in order to protect the Speaker from disqualification on the ground of defection. The Tenth Schedule offers this exemption only if the Speaker does not, so long as she continues to hold such office thereafter, rejoin that political party or become a member of another political party. The Speaker who, having given up by reason of her election to such office her membership of the political party to which she belonged immediately before such election, rejoins such political party after she ceases to hold such office, also enjoys the benefit of this exemption.

Although the Tenth Schedule to the Constitution has had this provision since 1985, the former Speaker, Neelam Sanjiva Reddy remains the only Speaker to have relinquished his party membership after assuming office in 1967. While all the Speakers since 1985 have not invoked this exemption under the Tenth Schedule to resign from their parties, it has not been generally perceived as having compromised their ability to function impartially. Paragraph 5, therefore, remains an unutilised provision, if not a dead letter.

Yet, such resignations are considered valid only if the incumbent specifically invokes this exemption. In 1990, Dr. Luis Proto Barbosa, resigned from his party, the Congress, two months after being elected as the Speaker of the Goa assembly. As he did not specifically invoke this exemption in his resignation letter, and as there was a gap of two months between his assumption of office as Speaker, and the resignation, he was disqualified from the assembly on the ground of defection. Both the Goa Bench of the Bombay High Court and the Supreme Court upheld his disqualification on this ground.

If the Paragraph 5 exemption under the Tenth Schedule from disqualification is based on a legitimate expectation that a Speaker -exercising quasi-judicial powers - must be impartial, it requires no emphasis that a person being considered for elevation as a Judge of a High Court or the Supreme Court must be seen as completely non-partisan, as such a person, during the tenure as a Judge, is likely to hear disputes involving political parties, and their programmes.

Open affiliation with political parties, as opposed to sharing or supporting a political ideology or a standpoint, may result in such candidates being seen as lacking the key attributes of judgeship, namely, neutrality, objectivity, and fairness.

Appointment as a judge cannot overnight change an active party functionary and dissociate herself from her party loyalty, proximity to political leaders, obligations etc. howsoever one keeps the office of a judge away from the pulls and pressures of party politics. A Speaker who continues to be a party member despite her election as the Speaker may still strive to appear to be impartial in the conduct of her duties, as Paragraph 5 of the Tenth Schedule does not make resignation from the party mandatory, and it only seeks to protect those who do so from disqualification. But the same cannot be said of a Judge, whose immediate political background, alliances before her elevation as Judge, can give rise to reasonable concerns about her impartiality and objectivity as a Judge.

No doubt, the principle of recusal gives an option to the Judge concerned to recuse herself from hearing cases which may conflict with her membership of a political party. But in practice, a judge recuses herself from a case, based on her discretion, and there are recent instances of Judges refusing to recuse themselves from hearing cases in which parties had expressed concerns of serious conflicts of interest.

This is different from saying that candidates should not become ineligible for consideration for judgeships simply on the ground that they had expressed their views on contemporary political issues in the public domain. Expression of opinion is the spirit of democracy and meaningful dissents makes it more vibrant.

It is this consideration which influenced the Supreme Court Collegium to reiterate its recommendation to elevate advocate Somasekhar Sundaresan, as a Judge of the Bombay High Court. The Government sought reconsideration of the recommendation on the ground that he has aired his views on the social media on several matters.

The Collegium suggested that the manner in which Sundaresan has expressed his views does not justify the inference that he is a “highly biased opinionated person” or that he has been “selectively critical on the social media on the important policies, initiatives and directions of the Government” (as indicated in the objections of Department of Justice) nor is there any material to indicate that the expressions used by the candidate are suggestive of his links with any political party with strong ideological leanings.

The Collegium’s citing the absence of links with any political party with strong ideological leanings to reiterate its recommendation on elevating Sundaresan is crucial to understand this distinction.

Observers, however, cannot miss the fact that the same Collegium had recommended in January the name of the Bharatiya Janata Party leader Lekshmana Chandra Victoria Gowri as a judge of the Madras High Court. Gowri was appointed as the Union Government’s senior standing counsel at the Madras High Court’s Madurai Bench in 2015. In 2020, she was elevated as assistant solicitor general of India for the Madurai Bench of the Madras High Court.

Gowri is not just a member of the BJP. She was appointed state in-charge of the party’s Kerala Mahila Morcha in 2010, and she campaigned for the BJP during the 2014 Lok Sabha election in Tamil Nadu. She had an active social media presence as National General Secretary of BJP Mahila Morcha, posters all over in the company of political leaders which suggests her active political life.

But it is her views in the public domain, rather than her known political affiliation, which must have led to greater concerns before the Collegium. In her video interviews, available on the YouTube since 2018, and in the two articles she wrote in 2012 and 2013 in the Organiser, and a e-magazine, Bharat Marg, she has, according to a recent article in Article-14.com, given expression to her prejudices against minorities. It is for the Collegium to ponder whether a person who made public statements against pluralism, the basis of India’s Constitution, and has not publicly retracted them, is suitable for the position of a High Court Judge.

The recommendation to elevate Gowri as a Judge stands in contrast to the elevation of another lawyer with a political background as a Judge in another era - the eminent jurist and former Supreme Court Judge, Justice V.R.Krishna Iyer, who passed away in December 2014, after turning 100 years.

Justice Krishna Iyer had represented Thalasserry constituency in erstwhile Madras Legislative Assembly and later the Kerala assembly as an independent member. He served as a Minister in E.M.S. Namboodiripad Government in Kerala for two years between 1957 and 1959, before he resumed his practice as an advocate. He was elevated as a judge of the Kerala High Court in 1968 and later as a Supreme Court Judge in 1973. He was not part of any political party.

Importantly, Krishna Iyer’s tenure as a Minister in the Communist Party government in Kerala was almost a decade before his elevation as a Judge of the High Court. His stint in the legislature as an independent member, and as a Minister in-charge of law, justice, prisons, irrigation, etc. prepared him as a Judge who would deliver many progressive judgments later.

The difference in the political backgrounds of Justice Krishna Iyer, and Gowri, throws sufficient light on the difference in the norms for elevation of candidates for High Court Judges then and now. Justice Krishna Iyer was not an active member of a political party at the time of his elevation as a Judge in 1968, whereas Gowri’s immediate political background must have raised valid concerns before the Collegium.