The Supreme Court (SC) has stated that ‘suitability’ of a candidate cleared by the SC Collegium for appointment as a judge in a constitutional court cannot be a subject of judicial review, while pronouncing reasons for dismissing petitions which claimed that advocate Victoria Gowri was ineligible for appointment as an Additional Judge of the Madras High Court. The verdict came on February 10, 2023.
However, this is not the first instance that a judge’s appointment has been challenged in the SC. In 1992 also, the SC had quashed the appointment of K.N. Srivastava as a judge of the Guwahati HC, before he could take oath as a judge. The petitioners in the case of Victoria Gowri also cited the 1992 Case but of no avail.
On January 17, 2023, the Supreme Court Collegium recommended Victoria Gowri’s elevation to the HC. However, her appointment raised controversy when lawyers from the Madras HC wrote to the Chief Justice of India (CJI), D.Y. Chandrachud, seeking to recall the recommendation. The letter draw the collegium’s attention to social media posts of Advocate Victoria Gowri in 2018 which, petitioners allegedly amounted to hate speeches against Christians and Muslims.
What the Bench Said
Advocate Victoria Gowri’s appointment was notified by the SC Collegium on February 6, 2023. She took oath as an Additional Judge in the Madras HC on February 7, 2023. The Special Bench of Justices Sanjiv Khanna and B.R. Gavai stated that a judge’s pledge and duty transcended religious, linguistic, regional or sectional diversities. As an Additional Judge, she would be under the daily scrutiny from lawyers, litigants, and the public. The bench also said that while exercising the power of judicial review, it could not issue a writ of certiorari (a write issued by a superior court for the re-examination of an action of a lower court) Doing so would violate the law, 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. Refusing to interfere with Victoria Gowri’s appointment, the bench said that the political affiliation of a candidate or public expression of their view did not impact their work as a judge.
The 1992 Case
In the 1992 Case, the controversy was around the appointment of K.N. Srivastava as Judge of the Guwahati HC. Srivastava’s appointment was notified by the President of India on October 15, 1991. However, he had not taken the oath as a judge yet. The SC was sceptical about his appointment as it would violate Article 217 of the Constitution which states that a person would be qualified to be appointed as a HC judge only if he has held a ‘judicial office’ in India for or has practised as a HC lawyer for at least ten years. A lawyer challenged Srivastava’s appointment in the Guwahati HC, because Srivastava had neither practised as an advocate for 10 years, nor held any judicial office. At the time of his recommendation, he was working as the legal remembrancer and secretary with the law and judicial department of the Mizoram Government. Later, the petition was transferred to the SC.
Though there were corruption allegations against Srivastava as well, the SC restricted its judgment to the issue of his eligibility for appointment to the HC. Ultimately, the SC declared that Srivastava was, in fact, not eligible to be appointed as a HC judge, and quashed his appointment.
It was for the first time in India after independence that in 1992, the SC was seized of a situation when the Court had to determine the eligibility of a person, appointed as a judge of the HC by the President of India.
The petitioners in Gowri’s case also cited Srivastava’s judgment to show that the SC could set aside the appointment of a judge, even when an appointment order has been issued. However, Srivastava’s case was decided before the Collegium system was crystallised by the second Judges case in 1993 and the third Judges case in 1998. Hence, it was the first such intervention against the recommendations made by the SC Collegium.
Srivastava’s Case vs Gowri’s Case
The Gowri’s case did not challenge her ‘eligibility’ to be appointed as a judge in the HC. The SC judgment on Gowri referred to past judgments which differentiated between the eligibility of a candidate for evaluation, and the evaluation of the worth and merit of a candidate. The Court also pointed out that it could look into the eligibility of a candidate, but the question whether a person is fit to be appointed as a judge involves the aspect of suitability which stands excluded from the purview of judicial review. In the case of Gowri, the concerns raised were pertaining to her suitability and not her eligibility.
The SC also stated that the 1992 Judgment was passed in a case relating to the eligibility of a person who was not qualified to and eligible for the post.
Appointment of Judges in India: Centre vs Collegium
Collegium is a system under which appointments and transfers of judges are decided by a forum of Chief Justice of India (CJI) and the four senior-most judges of the SC. It has no place in the Indian Constitution.
The Collegium of the SC comprises five senior judges including the CJI. They consider the elevation of Chief Justices/Judges of HC to SC, elevation of judges of HCs as Chief Justices, and elevation of judges. In case of difference of opinion, the majority view prevails. Since Constitution mandates that consultation with the CJI is necessary for appointments to judiciary, the collegium model evolved.
While there is no mention about the collegium in the Constitution of India, it has evolved through the SC’s own three judgments, collectively know as the ‘Three Judges Cases’— (1) S.P. Gupta vs. Union of India – 1981 (also known as the Judges’ Transfer Case); (2) Supreme Court Advocates on Record Association vs. Union of India – 1993; and (3) In re Special Reference 1 of 1998.
Appointment of Judges to the SC
According to Article 124(2) of the Constitution, every judge of the SC shall be appointed by the President after consultation with such of the judges of the SC and of the HCs in the states as the President may deem necessary for the purpose and shall hold office until he attains the age of 65 years. In the case of appointment of a judge other than the CJI, the CJI shall always be consulted.
Right now, the collegium consists of six judges instead of five, because none of the four senior-most judges would become the next CJI. It is mandatory for the next CJI to be a part of the collegium. Justice Sanjiv Khanna is, therefore, the sixth member of the collegium right now who would succeed the present CJI, D.Y. Chandrachud, as the next CJI. The recommendations by the collegium for the SC could be of two types: one, when HC judges are to be elevated to the SC and two, when senior lawyers are directly appointed as SC judges. For appointments to the HCs, the SC Collegium would comprise only three judges including the CJI and two senior-most judges. For appointment of judges to the SC, the collegium comprises five judges.
Like the SC, the HCs too have a collegium, headed by the CJ of the HC and two senior-most judges as members. The HC Collegium sends its recommendation regarding o judicial appointments only to the SC Collegium.
Appointment of Judges to the HC
For appointment or elevations of judges, the HC Chief Justice, along with two senior-most judges, makes recommendation to the state government. The state government, in turn, sends the names to the Centre with its input. On the directions of the Centre, the Intelligence Bureau conducts the background checks and sends its report to the SC Collegium which then recommends the names to the Centre for appointment. The Centre has the right to accept or return the file back to the collegium for reconsideration. The collegium has the right to reiterate the names sent back by the Centre for reconsideration. In that case, the Centre is bound to appoint the candidate.
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