Sanjeev Sirohi
Published on: 19 February 2023 at 21:45 IST
While finally ending the prolonged suspense and uncertainty that had enveloped itself over the appointment of Justice LC Victoria Gowri as Judge of the Madras High Court, the Apex Court as recently as on February 10, 2023 in a learned, laudable, landmark and latest judgment titled Anna Mathews And Others vs Supreme Court Of India And Others in Writ Petition (Civil) No. 18 & 147 of 2023 dismissed the two petitions with reasons challenging her appointment as Additional Judge of the Madras High Court.
The Apex Court held in no uncertain terms that as she fulfilled eligibility norms for constitutional court Judgeship, her past political affiliation was no disqualification.
The petitioners who are advocates practicing in the High Court – Anna Mathew, Sudha Ramalingam, D Nagasaila and R Vaigai – through senior advocates Raju Ramachandran and Anand Grover questioned her past political affiliations and cited her five-year-old purported hate speeches against conversions allegedly forcibly secured by Muslim and Christian missionaries.
My best friend Sageer Khan was deadly against conversions and way back in 1994 when I once expressed my desire to him to become a Muslim like him influenced by his style and how he stood by me like a rock when I was not faring well in my academics in BSc with my close friends mocking at me was in literal tears and he immediately caught my hand and placed it in top of his head and said that, “I am giving you an oath that never in life will you ever relinquish your religion and the God whom you worship till now nor will you ever dream of doing so. You worship Lord Shiv as I have seen till now and so you swear that you will never give up worshipping Lord Shiv till you die nor will you ever give up your religion just like I will never give up my faith in Allah nor my religion. Leave alone getting converted say on oath that you will never enter a mosque nor even see towards mosque but will always worship your own God in temple like I pray in a mosque,”.
Above all, all religion and Gods are different routes to reach the same destination just like when we go to top of mountain from different route, we reach the same destination. There is a reason why God makes our birth in a particular religion and we should never shun that religion where God ensured we take birth.”
I had to give the oath to him. Sageer Khan also said that conversions must be totally banned in all countries in world and those who abet must be sent to jail for at least few years so that they never dare again to try to convert some one and also heavy penalty must be imposed on them!
So Justice Gowri lashing out in anger at conversions is quite similar to the anger that my best friend Sageer Khan always demonstrated.
It is trite to say that conversions must actually be totally banned from India as we have seen that missionaries on many occasions give lure of money and what not just to secure conversions which is a very big threat also to our national security as the population demography can be easily changed and the illiterate people and some literate people too many times get brain washed and indulge in wrong acts which are inimical to our national interests! We are seeing how in some States conversion is banned but it is high time and this needs to be also done now on a national scale.
It must be disclosed here that the petitioners had made late night requests for a late night hearing on the issue attempting to prevent Gowri from taking oath as Judge. The CJI Dr DY Chandrachud declined the request and instead constituted a Bench of Hon’ble Mr Justice Sanjiv Khanna and Hon’ble Mr Justice BR Gavai.
The new Bench was constituted after Hon’ble Mr Justice MM Sundresh expressed reservations to the CJI as he had been a consultee Judge for appointment of LC Victoria Gowri as a Judge of Madras High Court.
At the very outset, this notable judgment authored by a Bench of the Apex Court comprising of Hon’ble Mr Justice Sanjiv Khanna and Hon’ble Mr Justice BR Gavai sets the ball in motion by first and foremost putting forth in para 1 that, “The legal issue raised in the aforementioned writ petitions relates to 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.”
Needless to say, the Bench states in para 2 that, “In our opinion, this legal issue is settled and is not res integra.”
While citing the relevant case law, the Bench enunciates in para 3 that, “This Court, in Mahesh Chandra Gupta v. Union of India and Others (2009) 8 SCC 273, has held that appointment of a judge is an executive function of the President of India. Article 217(1) prescribes the constitutional requirement of consultation,”.
“Fitness of a person to be appointed as a judge of the High Court is evaluated in the consultation process. Evaluation of the worth and merit of a person is a matter entirely different from eligibility of a candidate for elevation,”.
“While Article 217(2) prescribes the threshold limit or the entry point for a person to be qualified to be a judge of a High Court, Article 217(1) prescribes the procedure to be followed, which procedure is designed to test the fitness of a person so to be appointed; her character, her integrity, her competence, her knowledge and the like,”.
“Thus, this judgment draws on the basic difference between eligibility and suitability. Eligibility is an objective factor which is determined by applying the parameters or qualifications specified in Article 217(2),”.
“Therefore, when eligibility is put in question, the question would fall within the scope of judicial review. However, the question whether a person is fit to be appointed as a judge essentially involves the aspect of suitability and stands excluded from the purview of judicial review.”
While continuing in similar vein, the Bench observes in para 4 that, “The ratio in this judgment has been followed in M. Manohar Reddy and Another v. Union of India and Others (2013) 3 SCC 99, inter alia, observing that the consultative process envisaged under Article 217(1) is to limit the judicial review, restricting it to the specified area, that is, eligibility, and not suitability,”.
“After referring to two decisions of the 9 Judges’ Bench in Supreme Court Advocates-on-Record Association and Others v. Union of India (1993) 4 SCC 441 , and Special Reference No. 1 of 1998, Re: (1998) 7 SCC 739, it is opined that judicial review lies when there is lack of eligibility or ‘lack of effective consultation’. Judicial review does not lie on ‘content’ of consultation.”
It would be instructive to note here that the Bench envisages in para 5 that, “Elaborating on what is meant by the term ‘lack of effective consultation’, we would like to refer to the observations made by this Court in Supreme Court Advocates-on-Record Association and Others (supra):
“JUSTICIABILITY
Appointments and Transfers
480. The primacy of the judiciary in the matter of appointments and its determinative nature in transfers introduces the judicial element in the process, and is itself a sufficient justification for the absence of the need for further judicial review of those decisions, which is ordinarily needed as a check against possible executive excess or arbitrariness.
Plurality of judges in the formation of the opinion of the Chief Justice of India, as indicated, is another inbuilt check against the likelihood of arbitrariness or bias, even subconsciously, of any individual. The judicial element being predominant in the case of appointments, and decisive in transfers, as indicated, the need for further judicial review, as in other executive actions, is eliminated.
The reduction of the area of discretion to the minimum, the element of plurality of judges in formation of the opinion of the Chief Justice of India, effective consultation in writing, and prevailing norms to regulate the area of discretion are sufficient checks against arbitrariness.
481. These guidelines in the form of norms are not to be construed as conferring any justiciable right in the transferred Judge. Apart from the constitutional requirement of a transfer being made only on the recommendation of the Chief Justice of India, the issue of transfer is not justiciable on any other ground, including the reasons for the transfer or their sufficiency.
The opinion of the Chief Justice of India formed in the manner indicated is sufficient safeguard and protection against any arbitrariness or bias, as well as any erosion of the independence of the judiciary.
482. This is also in accord with the public interest of excluding these appointments and transfers from litigative debate, to avoid any erosion in the credibility of the decisions, and to ensure a free and frank expression of honest opinion by all the constitutional functionaries, which is essential for effective consultation and for taking the right decision. The growing tendency of needless intrusion by strangers and busybodies in the functioning of the judiciary under the garb of public interest litigation, in spite of the caution in S.P. Gupta while expanding the concept of locus standi, was adverted to recently by a Constitution Bench in Krishna Swami v. Union of India.
It is, therefore, necessary to spell out clearly the limited scope of judicial review in such matters, to avoid similar situations in future. Except on the ground of want of consultation with the named constitutional functionaries or lack of any condition of eligibility in the case of an appointment, or of a transfer being made without the recommendation of the Chief Justice of India, these matters are not justiciable on any other ground, including that of bias, which in any case is excluded by the element of plurality in the process of decision-making.”
Broadly speaking, the Bench mentions in para 6 that, “Following the ratio, in Mahesh Chandra Gupta (supra), it has been held that:
“77. As stated above, in the present case, the matter has arisen from the writ of quo warranto and not from the writ of certiorari. The biodata of Respondent 3 was placed before the Collegiums,”.
“Whether Respondent 3 was “suitable” to be appointed a High Court Judge or whether he satisfied the fitness test as enumerated hereinabove is beyond justiciability as far as the present proceedings are concerned,”.
“We have decided this matter strictly on the basis of the constitutional scheme in the matter of appointments of High Court Judges as laid down in Supreme Court Advocates-on-Record Assn. and in Special Reference No. 1 of 1998, Re. Essentially, having worked as a member of the Tribunal for 11 years, Respondent 3 satisfies the “eligibility qualification” in Article 217(2)(b) read with Explanation (aa).””
Furthermore, the Bench hastens to add in para 7 that, “To further elucidate, we need to state that after the Collegium of the High Court makes a recommendation for elevation, inputs are received from the intelligence agencies, which conduct a background check, and comments from the government are considered by the Collegium of the Supreme Court consisting of the Chief Justice of India and two senior most Judges,”.
“Opinion and comments of the Judges in this Court conversant with the affairs of the High Court concerned are called for in writing and placed before the Collegium. Invariably a number of shoot down and dismissive letters and communications from all quarters are received. Only thereafter, and on consideration, the Collegium of the Supreme Court takes a final call, which is then communicated to the government.”
Most significantly, the Bench envisages in para 8 holding that, “During the course of hearing before us, it was accepted that a number of persons, who have had political backgrounds, have been elevated as judges of the High Courts and the Supreme Court, and this by itself, though a relevant consideration, has not been an absolute bar to appointment of otherwise a suitable person,”.
“Similarly, there have been cases where the persons recommended for elevation have expressed reservations or even criticised policies or actions, but this has not been held to be a ground to treat them as unsuitable. It goes without saying that the conduct of the judge and her/his decisions must reflect and show independence, adherence to the democratic and constitutional values. This is necessary as the judiciary holds the centre stage in protecting and strengthening democracy and upholding human rights and Rule of Law.”
To be sure, the Bench points out in para 9 that, “We have made the said observations as these are aspects which are established and are taken into consideration by the Collegiums, both of the High Courts and the Supreme Court. It is in this context that we reject the argument that the facts were not known and considered by the Collegium,”.
“The petitioners have themselves stated and enclosed copy of their representation dated 1st February 2023, albeit the Collegium of the High Court and the Supreme Court have not, on this basis, deemed it appropriate to withdraw the recommendation or recall their decision.”
Most rationally, the Bench enunciates in para 10 that, “We are clearly of the opinion that this Court, while exercising power of judicial review cannot issue a writ of certiorari quashing the recommendation, or mandamus calling upon the Collegium of the Supreme Court to reconsider its decision, as this would be contrary to the ratio and dictum of the earlier decisions of this Court referred to above, which are binding on us,”.
“To do 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.”
Most commendably, the Bench holds in para 12 that, “We may also state that the person in question has been elevated as an Additional Judge of the High Court of Judicature at Madras,”.
“On taking oath the person pledges to work as a judge to uphold the Constitution and the laws. Article 51A8 of the Constitution casts an obligation on every citizen, and more so on every judge, to promote harmony, spirit of common brotherhood among all transcending religious, linguistic, regional or sectional diversities,”.
“Principle of secularism and dignity of every individual – regardless of the religion, caste or creed, is the foundation of Rule of Law and equal protection of laws. Not only is the conduct and judgments delivered considered at the time of confirmation, a judge is judged everyday by the lawyers, litigants and the public, as the courts are open and the judges speak by giving reasons in writing for their decisions.”
As a corollary, the Bench holds in para 13 that, “For the aforesaid reasons, we do not find any merit in the present writ petitions and, thus, we are not inclined to entertain and issue notice.”
Finally, the Bench concludes directing in para 14 that, “The writ petitions are dismissed at the admission stage.”
In conclusion, we thus see that the Apex Court dismissed the petition questioning the elevation of Victoria Gowri as Judge of the Madras High Court and gave pragmatic reasons also. So certainly now no aspersions should be ever cast on her as Apex Court has ratified her appointment which was made as per due process of law.
We saw how due to the inevitable fallout of this noteworthy judgment, she was sworn in as Additional Judge of the Madras High Court on February 7, 2023.
Sanjeev Sirohi, Advocate