BREAKING | Supreme Court Dismisses Plea Against Appointment Of Adv Victoria Gowri As Madras High Court Additional Judge

Gowri, by her own admission, is the general secretary of the Bharatiya Janata Party Mahila Morcha.

After the SC Collegium recommended her name on January 17, certain controversial articles and statements made by her on communal lines surfaced in public domain.

Referring to this material, the petitioners moved the Supreme Court.

During the hearing, Senior Advocate Raju Ramachandran submitted that their challenge was not based on Gowri’s political background. Rather their concern is with respect to ‘hate speech’ in her articles.

However, Justice Khanna said that the issue with respect to Gowri’s appointment is not one of "eligibility" but of "suitability". “On eligibility, there could be a challenge. But suitability...The courts should not get into suitability otherwise whole process will become haywire.”

He also pointed that the Court cannot, on judicial side, direct the collegium to reconsider its decision. “To assume that the Collegium has not taken these things into account, that may not be appropriate,” he added.

Courtroom Exchange

Khanna, “There is a difference between eligibility and suitability. On eligibility, there could be a challenge. But suitability...The courts should not get into suitability otherwise whole process will become haywire.”

However, Ramachandran contended that there are “implied conditions” of eligibility under Article 217 of the Constitution.

“The materials show a mindset, which is not in tune with the Constitution, which is antithetical to article 21 because equal justice is part of article 21. The oath says judge should bear true faith to the Constitution, which means in 'letter and spirit'. This person has rendered herself unfit to take oath due to her public utterances,” he argued.

Ramachandran added that the whole decision making process was stymied as the relevant information was not passed to the Collegium.

Here, Justice Khanna pointed that the impugned materials are of speeches from 2018. “It is not that the collegium did not have this before them. For us to get into this is opening up new jurisdiction which we have refrained from doing so.”

However, Ramachandran responded that it can’t be presumed that every judge reads every tweet in the public domain. “We can't presume knowledge...I am putting my case on eligibility, there is one precedent of this Court. These are not political views. These are views antithetical to the values of Constitution. It is hate speech, pure & simple. It will be a pure case of ineligibility.”

He pointed out to the statement made by the Chief Justice of India yesterday that the collegium has taken cognisance of the complaints about Gowri, which came to its notice after the recommendation was made.

He continued, “January 17 is the recommendation of the collegium. These facts come to public on February 1 and a representation is sent. The fact that the collegium has taken cognisance makes our prayer for interim relief stronger. This swearing in should not happen when the CJI has said that the collegium is still looking into it. It will be in deference to the collegium if it is stayed.”

Justice Khanna said that it is unprecedented for a Court (on the judicial side) to direct the Collegium to reconsider its recommendation.

Ramachandran responded that their prayer is not to pass a writ to Collegium but to take note of the Collegium's cognisance and pass appropriate order.

Here, Senior Advocate Anand Grover submitted that it is possible reports of IB did not indicate Gowri’s articles. “To that extent, there can be an enquiry,” he suggested.

However, Justice Gavai responded that the court cannot act on conjectures and surmises. “There are two consultee judges from Tamil Nadu.... And the process originates from High Court. Can we presume they are not aware of the antecedents?", Justice Gavai asked.

Grover then argued that the Collegium forms its opinion as per the inputs of the Govt. “If vital information is not available, for whatever reasons, I am not attributing mala fides, your lordships can direct...”

“That is going too far. All that you are saying this particular information "may not" have been available", Justice Khanna said.

After hearing the matter for about 20 minutes, the bench said it was dismissing the matter.

"We are not entertaining the writ petitions. Reasons will follow", Justice Khanna said.

High drama ahead of hearing

There was high drama in the Supreme Court ahead of the hearing of the matter. The petitioners' lawyers sought for an early hearing as the oath taking ceremony at the Madras High Court was scheduled at 10.35 AM. The petitions were originally listed as item number 38 before a bench comprising Justices Sanjiv Khanna and MM Sundresh.

The lawyers were informed that the matter will be heard at the first court (CJI's bench) at 9.15 AM. As the lawyers gathered there, the bench with three chairs was set-up, indicating that it will be heard by a 3-judge bench. 

After waiting for almost 30 minutes, the lawyers were told that the hearing will take place at court 7 before a special bench of Justices Sanijv Khanna and BR Gavai. Justice Sundresh, who hails from Tamil Nadu, recused, as he was consulted by the collegium for the appointment of Gowri. There was no clarity about the timing of the hearing. Later, a list was published informing that the special bench will hear the matter at 10.30 AM. The bench started the hearing at 10.25 AM, five minutes ahead of the scheduled time.

While the hearing was in progress, Gowri took oath.