The controversy surrounding the elevation of Advocate L Victoria Gowri as a judge of the Madras High Court is entering unchartered territory. .Chief Justice of India (CJI) DY Chandrachud on Monday conceded that certain material against Gowri - which could allegedly disqualify her as per detractors - came to the notice of the Collegium only after it made the recommendation.He was responding to a request by Senior Advocate Raju Ramachandran to list a petition against Gowri's elevation to the Madras High Court."We have seen the plea and we have read it. There are certain developments which have taken place. Collegium has taken cognisance of what came to our notice and it was after our recommendation," the CJI said.He said that the petition will be listed for hearing before the Supreme Court tomorrow itself..But there is a two-fold problem.One, the recommendation of the Collegium to appoint Gowri has already been cleared by the Central government. Hence, the legal issue that comes to the fore is whether the appointment of a judge of a Constitutional court can be quashed by a court after the warrant of appointment is issued, but before the judge is actually sworn in.Aside from that, it is arguable that the grounds on which the appointment has been challenged are subjective, and not in line with the criterion laid down in the Constitution. .On maintainability .The Constitution of India makes it clear that a sitting judge of a High Court or the Supreme Court can be removed only by a process of impeachment initiated in Parliament.The process itself is cumbersome, so much so that no Supreme Court judge has been impeached till date. Previously, impeachment proceedings had been initiated against two High Court judges - Justice Soumitra Sen and Justice PD Dinakaran - but they resigned before such proceedings could conclude. Apart from these a motion to impeach former Chief Justice of India Dipak Misra was rejected by the Rajya Sabha..That said, the Supreme Court has in the past quashed a warrant of appointment issued by the President with respect to a High Court judge before such person took oath as judge.In the case of Kumar Padma Prasad v. Union Of India, the Supreme Court had found that a candidate whose appointment was notified did not meet the eligibility criteria required for a High Court judge, as prescribed under Article 217 of the Constitution..It had, therefore, quashed the warrant and also ordered that the oath should not be administered to the concerned person.Hence, there is precedent to show that such warrant of appointment can be quashed by issuance of a writ without resorting to impeachment in case the concerned person has not taken oath..On merits.In the Kumar Padma Prasad case, the person who was appointed to be a judge did not hold a 'judicial office' as required under Article 217, but had only held the post of legal remembrancer-cum-secretary. He had also served as Assistant to Deputy Commissioner. This cannot be considered a judicial office, it was held by the top court while quashing the warrant of appointment..However, in the present case, the challenge is based on statements made by Gowri and her political stance, which are in the public domain..Will cause grave harm to judiciary: Madras High Court lawyers protest proposed elevation of Victoria Gowri as judge.Hence, the question is whether the Court will go into the same and then pass any order, especially since it was the Collegium which recommended Gowri for appointment in the first place..Aside from this, one obvious question that begs an answer is: how did such material against Gowri evade the Collegium in the first place?The CJI conceded on Monday that certain materials came to the notice of Collegium after it had made the recommendation. This episode reveals that it is practically impossible for the Collegium to micromanage and delve into all aspects of each candidate that comes up for its consideration.Union Law Minister Kiren Rijiju, albeit in a slightly different context, had also recently echoed the same concerns when he stated that judges are already overworked on the judicial side, and that donning the administrative robe of a Collegium member was not desirable. .If the Collegium system is here to stay, then it is time the top court considers the creation of a permanent secretariat to carry out all administrative tasks of the Collegium, including thorough background checks of each candidate.The ramifications that elevation/non-elevation of a candidate to a Constitutional court can have on the Republic and its citizens are enormous.Justice cannot be sacrificed at the altar of inevitable slip-ups on the part of overworked judges..Ratna Singh contributed to this story.
The controversy surrounding the elevation of Advocate L Victoria Gowri as a judge of the Madras High Court is entering unchartered territory. .Chief Justice of India (CJI) DY Chandrachud on Monday conceded that certain material against Gowri - which could allegedly disqualify her as per detractors - came to the notice of the Collegium only after it made the recommendation.He was responding to a request by Senior Advocate Raju Ramachandran to list a petition against Gowri's elevation to the Madras High Court."We have seen the plea and we have read it. There are certain developments which have taken place. Collegium has taken cognisance of what came to our notice and it was after our recommendation," the CJI said.He said that the petition will be listed for hearing before the Supreme Court tomorrow itself..But there is a two-fold problem.One, the recommendation of the Collegium to appoint Gowri has already been cleared by the Central government. Hence, the legal issue that comes to the fore is whether the appointment of a judge of a Constitutional court can be quashed by a court after the warrant of appointment is issued, but before the judge is actually sworn in.Aside from that, it is arguable that the grounds on which the appointment has been challenged are subjective, and not in line with the criterion laid down in the Constitution. .On maintainability .The Constitution of India makes it clear that a sitting judge of a High Court or the Supreme Court can be removed only by a process of impeachment initiated in Parliament.The process itself is cumbersome, so much so that no Supreme Court judge has been impeached till date. Previously, impeachment proceedings had been initiated against two High Court judges - Justice Soumitra Sen and Justice PD Dinakaran - but they resigned before such proceedings could conclude. Apart from these a motion to impeach former Chief Justice of India Dipak Misra was rejected by the Rajya Sabha..That said, the Supreme Court has in the past quashed a warrant of appointment issued by the President with respect to a High Court judge before such person took oath as judge.In the case of Kumar Padma Prasad v. Union Of India, the Supreme Court had found that a candidate whose appointment was notified did not meet the eligibility criteria required for a High Court judge, as prescribed under Article 217 of the Constitution..It had, therefore, quashed the warrant and also ordered that the oath should not be administered to the concerned person.Hence, there is precedent to show that such warrant of appointment can be quashed by issuance of a writ without resorting to impeachment in case the concerned person has not taken oath..On merits.In the Kumar Padma Prasad case, the person who was appointed to be a judge did not hold a 'judicial office' as required under Article 217, but had only held the post of legal remembrancer-cum-secretary. He had also served as Assistant to Deputy Commissioner. This cannot be considered a judicial office, it was held by the top court while quashing the warrant of appointment..However, in the present case, the challenge is based on statements made by Gowri and her political stance, which are in the public domain..Will cause grave harm to judiciary: Madras High Court lawyers protest proposed elevation of Victoria Gowri as judge.Hence, the question is whether the Court will go into the same and then pass any order, especially since it was the Collegium which recommended Gowri for appointment in the first place..Aside from this, one obvious question that begs an answer is: how did such material against Gowri evade the Collegium in the first place?The CJI conceded on Monday that certain materials came to the notice of Collegium after it had made the recommendation. This episode reveals that it is practically impossible for the Collegium to micromanage and delve into all aspects of each candidate that comes up for its consideration.Union Law Minister Kiren Rijiju, albeit in a slightly different context, had also recently echoed the same concerns when he stated that judges are already overworked on the judicial side, and that donning the administrative robe of a Collegium member was not desirable. .If the Collegium system is here to stay, then it is time the top court considers the creation of a permanent secretariat to carry out all administrative tasks of the Collegium, including thorough background checks of each candidate.The ramifications that elevation/non-elevation of a candidate to a Constitutional court can have on the Republic and its citizens are enormous.Justice cannot be sacrificed at the altar of inevitable slip-ups on the part of overworked judges..Ratna Singh contributed to this story.
