Indian law students are reporting for JURIST on law-related developments in and affecting India. This dispatch is from Samar Veer, a third-year law student at National Law University, Delhi.
Putting to rest yet another controversy relating to the national debate over judicial appointments, the Indian Supreme Court last week dismissed two writ petitions filed in public interest that challenged the appointment of Advocate L. Victoria Gowri as an Additional Judge of the Madras High Court.
Gowri’s appointment had taken a controversial spin when videos and other materials depicting her engaging in hate speech against religious minorities in India came to light. These revelations had led to intense criticism of her appointment by a few members of the Madras Bar Association, which eventually led to the filing of the aforementioned petitions by three advocates.
A two-judge bench of the Supreme Court comprising Justice Sanjiv Khanna and Justice B.R. Gavai dismissed the petitions Tuesday saying that they would not go into the grounds of ‘suitability’ as opposed to ‘eligibility’ of an appointed judge. A detailed judgment explaining the reasons for the decision was later released on Friday, 10th February.
In the detailed order, the bench referred to and elucidated the scope of Article 217 of India’s Constitution, which defines the procedure for appointments of judges to the High Courts. The primary issue identified by the court was to determine “the scope and ambit of judicial review in the matter of appointment of judges to the High Courts under Article 217 of the Constitution of India.” The court immediately pointed out in its reasons that the issue was settled and no longer res integra (an undecided point of law) by referring to various precedents. As held in the case of Mahesh Chandra Gupta v. Union of India, appointing judges to the higher judiciary is a function of the President of India and such appointments are done based on a consultative process. Importantly, a distinction was drawn between the terms “eligibility” and “suitability”.
As per this dichotomous interpretation, ‘eligibility’ would refer to the “objective factor which is determined by applying the parameters or qualifications specified in Article 217(2).” This is separated from ‘suitability’ where the question of a person being fit for appointment is involved. According to the court, ‘eligibility’ is within the purview of judicial review as any compromises there may indicate shortfalls in the consultation process under Article 217. But ‘suitability’, which forms “the content of the consultation” itself, is beyond the scope of examination. The support of the precedent in M. Manohar Reddy and Another v. Union of India and Others that specifies ‘eligibility’ as being within said scope was relied upon in the order.
The court went on to refer to the important precedents set in Supreme Court Advocates-on-Record Association and Others v. Union of India that consider the primacy of the judiciary in making appointments as sufficient justification to reject judicial review. Based on this case, it was explained what “lack of effective consultation” meant and further clarified that every recommendation for judicial appointments to the High Courts goes through an exhaustive review process where background checks, comments and objections are received from the Supreme Court collegium and central government. “Invariably, a number of shoot down and dismissive letters and communications from all quarters are received..” the Court said. The judges further went on to hold that having a political background is per se not an absolute bar to judicial appointment.
On the basis of the last mentioned precedent, it rejected the argument that the collegium was “unaware” of Gowri’s problematic statements, emphasising the rigour of the process. Finally, the Supreme Court bench stated that it did not have powers to issue writs quashing the impugned appointments, since “…doing so would violate the law as declared, as it would amount to evaluating and substituting the decision of the Collegium, with individual or personal opinion on the suitability and merits of the person.” Notably, the petition was being heard at around the same time Gowri was taking her oath of affirmation as additional judge, arguably rendering the whole petition infructuous.
India has witnessed a string of controversies related to judicial appointments lately, which persist during a prolonged quarrel between the judiciary and executive and a relentless barrage of criticisms regarding judicial appointments by the latter. However, this particular confrontation is of a very different and seemingly far more sinister origin. The genesis of this issue is from an aspect of Indian political life that is certainly not unheard of. In fact, it is an issue India has been forced to grapple with far too frequently, right since its birth as a democratic republic: communalism and minority rights.
Despite the court making it a point to poignantly clarify how important it is to uphold democratic values and principles as a national duty under Article 51A of the Constitution, it seems to have not delved into the aspect of Indian democracy which considers secularism to be one of its core tenets as well. While it may be true that overriding judicial appointments is against the established norm, it is equally true that feigning ignorance of any acts, which so overtly constitute hate speech against a group of persons, is also against the judicial norm.
Further, it is a rather confounding anomaly when light is shed on the fact that the court was seemingly a judge in its own case. Is it not perplexing to vest decision-making authority in the hands of individuals who are so ostensibly a part of the institution whose decision is brought under the scanner? Even if so, is it at least a logically sound practice to put judges who are junior to the members of the collegium in charge of making the final decision regarding judicial appointments? If so, then is the whole process of judicial appointments not a paradox unto itself where seniors make decisions and junior judges uphold them, hence not making the decisions truly consultative, integrative and participatory, as the Court has famously held many years ago? All of these are questions that the petitioners may have borne in mind. It is rather plain to see why the court did not raise any objections to the appointment, as the whole process would be rendered self-contradictory at every stage.
To add to the quagmire that the judicial appointments process seems to be, it is concerning to see that a recommendation so clearly marred with traits of bigotry survived the scrutiny of the Collegium. In light of this, it is surely not sufficient to consider mere ‘eligibility’ for appointments, for the eligible will always outnumber the deserving and responsible. It is certainly not a crime to be an active participant in party-based politics, but no amount of propaganda, debate or majoritarian discourse could ever convince individuals of reason whose sensibilities are grounded in balanced constitutionalism, that it is acceptable to overlook and even masquerade purposefully incendiary rhetoric against a group of persons as free political expression.
What mysterious, opaque wisdom the court has employed in its reason, we shall perhaps never know. But perhaps rendering the system more transparent would have helped? Even on that front, the aggressive push of the Central government in recent months to reform the system unfortunately reeks of a seeming desire to create a judiciary that is obedient and informed by the executive’s political preferences, rather than truly independent powerhouse of justice. The unusual expediency with which the recommendation for L. Victoria Gowri, formerly National Secretary of the ruling Bharatiya Janata Party’s “Mahila Morcha” (Women’s wing) was approved by the executive at a time where it has continually questioned such recommendations, in addition to opposing the candidature of anti-government judges, supports this perspective. Truly, the system is caught between a rock and a hard place.