By the time the Supreme Court heard the challenge against the elevation of Victoria Gowri as an additional judge of Madras High Court, the process of appointment was completed, with Victoria Gowri having been sworn in. The Court went on to dismiss the writ petition, stating that the decision of the Collegium could not be judicially reviewed.
The Collegium is only an administrative body. Its decisions should be subjected to judicial review, at least legally and constitutionally. It is a settled law that the power of judicial review is a basic feature of the Constitution. This incident exposes the fragility of our judicial institution and the capacity of the executive to manipulate the process. The multiple lessons that follow from the episode are more significant than the contents of the judgment.
The Commonwealth (Latimer House) principles mandate “clearly defined criteria” and “publicly declared process” as essential requirement for judicial appointments. In a 2016 paper, relying on Bingham Centre Compendium, Jan Van Zyl Smit indicated that “more than 80 per cent of the independent Commonwealth jurisdictions have a Commission (for selection of judges) established by law or under the Constitution”.
Yet, a significant feature of our Constitution is that it does not talk about selection of judges to the higher courts. It only talks about their appointment. Articles 124 and 217 of the Constitution say that the President will appoint the judges to the higher judiciary.
The selection of judges, which precedes appointment, needed to be imaginatively designed by way of legislative or judicial means, in tune with the tenets of the Constitution. In India, that did not happen. The Collegium, as well as the Memorandum of Procedure (MoP), are not devices prescribed by the Constitution or any Statute. Those were evolved by the Supreme Court itself by way of the 2nd judges’ Case (1993), the 3rd judges’ Case (1998), and the 4th judges’ Case (2015).
Judicial appointments
The trajectory of judicial appointments in India was always a fight for dominance between the Judiciary (by way of Collegium) and the Executive (by way of a Judicial Appointment Commission). In the process, the country was deprived of an independent, participatory, and representative body to select the umpires of democracy. The result: We have often played badly and even unfairly. The Victoria Gowri episode only epitomises this tragedy. Note the egregious haste with which her appointment was notified and the swearing-in undertaken.
Appointments to the constitutional courts are one of the best kept secrets in India, as correctly lamented by Ruma Pal, a former judge of the Supreme Court.
During the hearing on February 7, 2023, Justice B.R. Gavai stated that “there are two consultee judges from Tamil Nadu and the process originates from the High Court”. According to the judge, the Supreme Court could not have presumed that the consultee judges “were not aware of the antecedents” of Victoria Gowri.
This exposes the fragility of the Collegium system in general and the so-called consultation process in particular. This, however, should have been a reason for entertaining the writ petition and granting an interim stay of Victoria Gowri’s elevation, not for rejecting the plea.
The consultation process to be effective should be participative, representative, and transparent. It should involve all stakeholders. It should happen in the public domain. It is neither difficult nor impossible, provided there is a political and judicial will. There are better models from other jurisdictions in this regard.
The Constitutional Reform Act 2005 of the UK as amended in 2013 provides a comprehensive statutory framework for selection to the supreme judiciary in the UK. This involves mandatory consultation with a group that includes senior judges in the Supreme Court, Chancellors of High Courts, and president of the Family Division.
Also, there has to be a consultation with the First Minister in Scotland and in Wales, and with the Secretary for States for Northern Ireland. Thus, regional representation in the process is also ensured.
Need for transparency
Transparency is the necessary condition for any consultation, which is alien to the Collegium system. The method of open interviews adopted by South Africa and Kenya are good models for assessing the antecedents of individual candidates. The pre-selection debates in the US Senate can also be explored.
When Sonia Sotomayor was nominated as an Associate Judge of the US Supreme Court by the Barack Obama administration in 2009, she had to explain about the allegedly racist comments she made in 2001. Sotomayor had said that she “would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who has not lived that life” (The New York Times, May 14, 2009).
Before the US Senate’s Judiciary Committee, she said her statement was ‘misconstrued’ and clarified that she had never held the view that “any ethnic racial or gender group has an advantage in sound judgment” (Reuters, 14 July 2009).
The comments allegedly made by Victoria Gowri, if correct, are clear instances of hate speech. They were far more serious than Sonia Sotomayor’s statement. One wonders how the Supreme Court remained unmoved when these were placed before the Bench in the writ petition. The apex court has come down heavily against hate speech in a series of judgments like Pravasi Bhalai Sangathan (2014), Tehseen Poonawalla (2018), Amish Devgan (2020) and, most recently, in Kaushal Kishor (2023).
The Court explained how hate speech negates constitutionalism and constitutional morality. The present incident thus poses a question of moral authority of the institution as well.
Ideological affiliation cannot be a reason to disqualify a person for elevation to the constitutional court. Great judges ranging from Justice V.R. Krishna Iyer to Justice Rajinder Sachar were active in politics, yet they made excellent judges. That Victoria Gowri was an office bearer in the Mahila Morcha affiliated to the BJP cannot be a disqualifying factor. This was clearly indicated while challenging her appointment. The issue was her eligibility and suitability viewed in the light of her public comments. Evidently this aspect was not subjected to a comprehensive scanning before her elevation.
The reliance on an Intelligence Bureau (IB) report for assessing the track record of proposed candidates is neither safe nor objective. The Central government might use the IB in a selective manner to hush up relevant material and project irrelevant factors (such as criticising the government or sharing a report critical of the Prime Minister), as has been clearly demonstrated by now.
The damage is already done. Yet, it is not totally irreversible. The Collegium must investigate the materials before confirming Victoria Gowri as a permanent judge. If the entire materials were not available before the recommendation of her name, such a deficit needs to be set right by considering them now before her confirmation.
Pertinently, in Shanti Bhushan and another vs Union of India (2008), there are vital observations by the Supreme Court to the effect that extension of tenure as additional judge is not automatic and that for sufficient reason, confirmation as permanent judges can be denied. Therefore, the subsequent findings regarding the lack of suitability can be a ground to follow the course suggested in Shanti Bhushan. On this, the Supreme Court and its Collegium will have to take a call.
In the 4th judges’ Case (2015), which struck down the National Judicial Appointment Commission, the Supreme Court had called for “glasnost” and “perestroika” in the existing Collegium system. But that has remained wishful thinking. No serious steps were taken to improve the system. The case of Victoria Gowri ought to have prompted the Court to invoke its introspective jurisdiction to revisit the Collegium system and restructure it, preferably by referring the case to a larger Bench. It was an opportunity missed not only for the Supreme Court, but for the nation.
Kaleeswaram Raj is a lawyer at the Supreme Court of India.
