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Madras HC judge takes oath after legal drama

Wary of setting a “very wrong precedent” by assessing the suitability of a candidate already cleared by the collegium for judgeship, the Supreme Court on Tuesday dismissed a plea for quashing the appointment of advocate LC Victoria Gowri as a judge in the Madras high court and remarked that asking the collegium to review its proposal could lead to a “breakdown” of the system.

A bench of justices Sanjiv Khanna and BR Gavai emphasised that personal and political views of a private person or a lawyer cannot be an impediment per se in his or her appointment as a judge, adding it is “impossible” to assume that the collegium did not take a holistic view before recommending Gowri as a judge.

Gowri was sworn in as an additional judge of the Madras high court at 10.50am even as the proceedings before in the top court were underway at that time.

In her swearing-in speech, Gowri, whose appointment was challenged citing her alleged hate speeches against Christians and Muslims, said that she will strive to liberate the marginalised and to nurture fraternity.

Gowri taking over as a judge followed unexpected twists over the previous 24 hours that witnessed an urgent hearing granted to the petitions against her appointment; a swearing-in scheduled on the cusp of the proceedings; the constitution and re-constitution of SC benches; and finally, the suspense around an expedited hearing.

On Monday morning, Chief Justice of India (CJI) Dhananjaya Y Chandrachud first listed for Friday the two petitions filed by some lawyers from Chennai against the collegium’s recommendation to appoint Gowri her as a HC judge. However, senior counsel Raju Ramachandran and Anand Grover rushed back a few hours later for an urgent order to stay Gowri’s swearing-in since the Union government had already notified her appointment.

At this point, the CJI advanced the hearing to Tuesday and listed it before a bench of justices Khanna and MM Sundresh. While the bench was expected to consider the matter at around 12 pm, the Madras HC administration fixed the swearing-in of Gowri and other new judges at 10.35am.

The swearing-in schedule forced the petitioners to scramble yet again for an expedited hearing on Tuesday morning. They also sought a new bench since justice Sundresh happened to be one of the consultee judges who rendered his opinion to the collegium on Gowri’s candidature.

On Tuesday morning, the petitioners’ lawyers were first informed by the registry of the Supreme Court that the CJI has constituted a new bench, comprising himself and justices Sanjay Kishan Kaul and KM Joseph, that will hear the case at 9.15am. As they kept waiting in the first court, an officer from the registry informed them that the hearing will now take place before a new bench of justices Khanna and Gavai. There was no clarity on the timing of the proceedings though.

Finally, the hearing commenced at 10.25am, five minutes before the usual time when the Supreme Court benches assemble.

At the outset, Ramachandran said that he is pleading for an interim order to stay administration of oath of office to Gowri in view of the “extraordinary turn of events” in the last 24 hours and the “ugly haste” shown in getting her appointed.

But the bench retorted that it would not issue any order staying Gowri’s swearing-in without examining the meat of the matter, and the legal and constitutional issues involved. “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 unworkable,” it added.

While Raju and Grover stressed that Gowri had rendered herself disqualified to take the oath of office on account of her vitriolic communal statements that were antithetical to the constitutional ethos, the bench pointed out that the substance of their contentions revolved around suitability and not eligibility.

“The materials you are citing now must have been before the collegium too. They are from 2018 and before. We cannot assume that the collegium or the consultee judges did not have this before them. For us to look into them on the judicial side will be opening up a new jurisdiction which we have always refrained from doing,” said the bench.

Raju, on his side, argued that some of these materials might not have been brought to the notice of the collegium and they went on to demonstrate a mindset which is not attuned to the constitutional principles and would run contrary to independence of judiciary.

But the bench said that there have been several instances in the past when people with political backgrounds have taken oath as judges of the Supreme Court as well as high courts.

While the bench gave examples of justices Krishna Iyer, R Pandian, Aaftab Alam and FI Rebello who had political affiliations before they were appointed as judges, justice Gavai added: “I also had a political background and I have been a judge for 20 years. I don’t think my political background has had any effect on my duties as a judge.”

Raju clarified that he was not objecting to Gowri’s appointment for her links with the Bharatiya Janata Party (BJP) but because of her hate speeches that impacted her eligibility to be appointed a a judge.

“That would be stretching it too much. It’s not possible to imagine the collegium did not have all the necessary materials before it…In any case, she is being appointed as an additional judge. If it is found that she is not complying with her oath, the collegium can always take a call at a later point in time. There have been cases where the collegium has not confirmed additional judges,” responded the bench.

It also said that it would be “unprecedented” to ask a bench on the judicial side to direct the collegium to reconsider its recommendation.

“What you are suggesting is that this court, on the judicial side, should ask the collegium to reconsider. That’s not something we can do…that would lead to a breakdown…We have a fairly robust scrutiny process. Let’s not interfere with that…We will be setting a very wrong precedent,” emphasised the court.

It added that the bench cannot act on the basis of “surmises and conjectures” when there were two consultee judges (with Madras as parent HC) in the top court who also gave their inputs to the collegium.

The bench then proceeded to dismiss the two petitions, and said that a reasoned order will be released soon.

Gowri, whose name was recommended by the collegium on January 17, was cleared as an additional judge of the high court and she will be up for confirmation as a permanent judge after two years when the Supreme Court collegium will assess her overall competence and suitability.

When the matter was mentioned before the CJI on Monday afternoon, justice Chandrachud had said that the “collegium has already taken cognisance of the developments” that took place after the recommendation for elevating Gowri was made.

According to people aware of the matter, the collegium last week took note of the offensive and communal statements attributed to Gowri, and initiated the process of verifying them. It wrote to the high court collegium but the response was still awaited, those cited above added. In the meantime, the government notified Gowri’s appointment on Monday morning.

There has only been a singular incident in judicial history when an appointment of a high court judge was quashed by the Supreme Court. In 1992, the apex court nixed the appointment of a state government officer, declaring him to be ineligible as a member of the judicial service to be appointed as a high court judge. However, during the hearing of the case, the Centre and the authorities in the Gauhati high court were restrained from administering the oath of office to the candidate.

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