How Supreme Court Dodged A Bullet By Refusing To Stop Gowri's Appointment To Madras High Court

The Supreme Court dodged a bullet yesterday (7 February) when it refused to hear a case challenging the appointment and swearing-in of L Victoria Gowri as a judge of the Madras High Court on political grounds.

A few activist lawyers had moved the Supreme Court to stop the appointment on the ground that she had made a “hate speech” against Christians and Muslims in the past, when she had opposed forced conversions (You can read what she said in 2018 here). 

The two-judge Supreme Court bench which heard the petitions was surely caught in a dilemma: if it had worn its faux “liberal” hat and stopped Gowri’s swearing-in, it would have faced embarrassment on two grounds.

First, the court has repeatedly claimed that the collegium system is the best way to appoint judges, and accepting that it made a mistake with Gowri would have been an admission of guilt that the system has many cracks and gaps.

Second, it has been hauling the government over the coals for delaying its recommendations for appointments to higher courts and on transfers of judges.

It could hardly accept that its own failures were causing delays as much as the government’s efforts to drag its feet on some recommendations of the collegium.

But it is a third argument that is particularly important. Gowri’s appointment was sought to be stalled because she was alleged to be biased against the minorities.

But this flies in the face of the collegium’s own stand on free speech and alleged bias when backing its own previous choices for elevation to the higher judiciary.

In January, the collegium put out its reasoning for reiterating some names for elevation to the higher judiciary.

It explicitly said that any previous views expressed by candidates for the higher judiciary cannot be held against them.

Here is how The New Indian Express reported the collegium’s reasons for ignoring objections of bias against some judges.

The newspaper quoted the collegium’s reasons while reiterating one of its choices for judgeship: "The views on social media attributed to the candidate do not furnish any foundation to infer that he is biased. The issues on which opinions have been attributed to the candidate are in the public domain and have been extensively deliberated upon in the print and electronic media."

The collegium added: "The manner in which the candidate has expressed his views does not justify the inference that he is a 'highly biased opinionated person' or that he has been 'selectively critical on the social media on the important policies, initiatives and directions of the government' (as indicated in the objections of Department of Justice) nor is there any material to indicate that the expressions used by the candidate are suggestive of his links with any political party with strong ideological leanings.

"All citizens have the right to free speech and expression under Article 19(1)(a) of the Constitution. Expression of views by a candidate does not disentitle him to hold a constitutional office so long as the person proposed for judgeship is a person of competence, merit and integrity." 

The bench which declined to set aside Gowri’s induction comprised Justice Sanjiv Khanna and B R Gavai.

Both of them will become chief justices in 2024 and 2025 respectively and they debunked the core argument of the petitioners, that past political affiliation can itself be a reason to suspect bias.

Justice Gowri (she has since been sworn in) was earlier associated with the Bharatiya Janata Party, and Justice Gavai pointed out that if political affiliation and lineages were reason enough to disqualify otherwise eligible judges from being chosen for high office, then he himself could have been eliminated.

Justice Gavai is the son of one of the founders of the Republican Party of India (the RS Gavai faction). 

The bench separated the idea of “eligibility” for high office from “suitability”.

The former term refers to a potential candidate who has the necessary qualifications and integrity for the office, while the latter is a judgement call on whether she or he holds the “right” kind of views.

Very often politically correct views are mistaken for integrity, which is not related to your ideological predilections.

You can be a full-blown communist or card-carrying secularist or Hindutva ideologue and still have integrity. 

In doing so, the court has, for its own reasons, indirectly accepted that a judge does not have to tow the line of political correctness to be chosen for high judicial office.

In the US, Supreme Court judges are specifically vetted by Congress for their political and religious views, and ideological diversity is achieved by the two main political parties making partisan choices when they have the necessary votes in Congress to do so.

In India, this diversity is coming as the result of a conflict between the executive and the judiciary over who should have how much say in top judicial appointments.

The collegium is past its sell-by date, but it has willy-nilly accepted the idea that political ideology is no reason to disqualify anyone.

One does not lose respect for the law or become biased just because of one’s ideological beliefs.

If we want a judiciary with no beliefs in any ideology, we will get no judges at all.