Can't Object To Judgeship Merely For Views Held As Lawyers : CJI DY Chandrachud On Justice Victoria Gowri's Elevation

“...Why was the collegium headed by you, at least on the administrative side, not able to withdraw that recommendation, or at least pending further review? Because the bench that you had constituted to look into this case said that despite the representation given to the collegium, you all did not find it necessary appropriate to withdraw that recommendation.”

In response, Chief Justice Chandrachud explained the multiple levels of scrutiny and feedback from various entities, including investigative agencies, in the process of judicial appointments. After the High Court collegiums propose names for elevation to the Bar, he explained, the recommendations “travel across the system” – from the High Court to the state government, from the State Government to the Union Government, and finally, from the Centre to the Supreme Court. “A thorough check is done on the antecedents and background of the candidate,” the Chief Justice said.

Then, he highlighted the delicate balance between promoting transparency and protecting the privacy of individuals being considered for judgeship, raising apprehensions regarding the unwillingness of qualified individuals to accept judicial office due to extreme scrutiny. Chief Justice Chandrachud said –

“The reasons which may lead us to appoint or not appoint a particular judge individually have to do with the several aspects of the personality of individual judges. And the grave danger is that if we start putting out everything that goes into the process of appointing judges, good people will not accept judgeship. The scrutiny is sometimes extremely trenchant as it has to be because we are recruiting people who will be judges for the next 15-20 years. So the level of scrutiny, including into the personal lives of individuals, which would have a bearing on their discharge of judicial duties, is extremely careful. Now, if we start putting out everything about the lives of individuals into the public realm, there’s a grave danger that people would not be willing to accept judicial office.”

While addressing the specific concerns raised over Justice Gowri’s elevation, the Chief Justice rejected the claim that the Supreme Court did not consider the issue at all.

"Your question contains an inference which is that the Supreme Court did not look at the issue at all, including after it was drawn to our attention. I don't think it will be a very correct assessment," CJI told the person who asked the question. In this context, it may be recalled that on February 6, when the petition challenging the appointment of Justice Gowri was mentioned, CJI's response indicated that the collegium was not aware of the objectionable statements.

"There are certain developments which have taken place, in the sense that the collegium has taken cognizance of what was drawn to our attention, or came to our notice, after we formulated our recommendations on the recommendation of the Chief Justice of the collegium of High Court of Madras. Since we have taken cognizance of certain developments which have taken place thereafter, we can list this petition tomorrow morning," CJI had said on February 6.

At the Harvard event, CJI said that legal professionals often handled cases representing diverse political views, which should not later be held against them when considering them for judgeship –

“To what extent do you disable an individual from becoming a judge? Just by virtue of the fact that they have at a certain point of time appeared for a political cause? Lawyers across their careers appear for a cross-section of clients. Lawyers do not choose their clients. In fact, it is my firm belief that as a lawyer, you are duty-bound to appear for whoever comes to you in search of legal aid, much as a doctor has to administer medical aid to whoever comes to their clinic. You do not presume the guilt or the lack of guilt of people who come to you.”

Chief Justice Chandrachud also said that past political connections would not necessarily disqualify individuals from becoming judges.  Responding to the objections over Justice Gowri’s membership of a political party before her elevation, Chief Justice Chandrachud said –

“You said that she was a member of a political party. We looked at it very, very carefully. The nature of the speech, which that judge is alleged to have made at a particular point of time, again, is looked at very carefully. One of the processes that we follow in the collegium is to ask for a report from the chief justice. If we are in doubt as the collegium, we go back to the chief justice of the high court and we say, "Well, this has been drawn to our notice, would you please give us a brief report on whether this is true or false?" We ask for feedback, we share that feedback with the government. The process of appointing judges is a very broad-based collaborative process, in which no one arm of the state has a decisive role to play. And just to give you one example, one of our greatest judges, Justice Krishna Iyer, who came out with some of the finest judgments, had a political background. My own experience has been that judges who have appeared for a cross-section of diverse political views across the spectrum have turned out to be amazing judges.”

Finally, the Chief Justice emphasized the transformative nature of assuming judicial office and the accountability ensured by civil society, the media, and public opinion in a democratic society –

“I am not sure whether we should be cold calling an individual merely for the views, which they may have held as lawyers, because I do believe that there is something in our profession, of judging, that once you assume judicial office, whether it is the peer training, the training which you undergo as judges, your experience as judges…There is something about this office, that makes you dispassionate, or which at least ought to make you dispassionate in terms of the work which you do, your interface with colleagues, your interface with the Bar. And particularly in a society like ours, which is an open society with democratic ideals, the Bar and the pressure of public opinion, the press, the media, these are very important counterweights, that ensure that judges are true to the oath and perform in accordance with the Constitution. This is because every part of the work, that we do as judges, is being constantly evaluated and re-evaluated by civil society, by the media. And I think that’s an important aspect of ensuring that judges work in terms of their constitutional mandate.”

In February this year, Advocate L Victoria Gowri took oath as an additional judge of the Madras High Court, while the Supreme Court was hearing two petitions filed by Madras High Court lawyers challenging her appointment. The apex court’s decision to recommend her elevation triggered a controversy, with a section of the bar criticising the proposal as ‘disturbing’ and against the interests of the independence of the judiciary. The protesting advocates highlighted the political affiliations of the nominee, who was, by her own admission, the general secretary of the Bharatiya Janata Party Mahila Morcha. Gowri also received criticism for what was described as ‘hate speech’ against religious minorities, particularly Muslims and Christians.

When the petitions against Justice Gowri were mentioned for listing, Chief Justice Chandrachud agreed to list them soon, revealing that the collegium has taken cognisance of the complaints against her.  On the next day, a division bench of Justices Sanijv Khanna and BR Gavai heard the matter. While the hearing was in progress, Justice Gowri took oath. The Supreme Court dismissed the pleas challenging her appointment. The court, among other things, objected to the presumption that the collegium was not aware of Gowri's background and statements. 

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