Victoria Gowri row: Parliament, CJI must act to preempt such situations; law of the land violated, say experts

Parliament and the Chief Justice of India must devise an effective mechanism to preempt the elevation of an individual facing serious allegations such as delivering hate speeches as a SC or HC judge in view of the controversy surrounding Justice Lekshmana Chandra Victoria Gowri, constitutional expert PDT Achary has said.

In an exclusive conversation with National Herald, Achary, who was Secretary-General of the Lok Sabha for two consecutive tenures from 2005 onwards, said that since the Supreme Court too had dismissed a petition challenging Gowri’s appointment and she had taken oath as a judge of the Madras High Court on Tuesday, February 7, no further judicial remedy was available to those aggrieved at the development.

“I do not know under what circumstances she was appointed, but the allegations that she has made vitriolic hate speeches against Muslims and Christians are serious and of tremendous concern to the people of the country. However, the President of India signed off on her appointment on the basis of the SC collegium’s recommendation and she has taken oath today. The Constitution protects sitting judges of the SC and HCs in the interest of judicial independence, and now, if at all, she can only be removed through impeachment proceedings in Parliament,” he said.

A motion of impeachment against a judge for ‘proven misbehaviour or incapacity’ can be initiated in Parliament under Article 124 (in case of SC judge) or Article 218 (in case of a HC judge) if at least 100 members of the Lok Sabha or 50 members of the Rajya Sabha give a signed notice to the chairperson. The latter may, at his discretion, admit or refuse the motion. If it is admitted, an enquiry committee under the Judges Inquiry Act, 1968 is constituted which then proceeds to examine the issue.

After concluding its investigation, the Committee submit its report to the LS Speaker or RS chairperson, who then lays the report before the House. If the report records a finding of misbehaviour or incapacity, the motion for removal is taken up for consideration and debated. This is required to be adopted by each House of Parliament by: (i) a majority of the total membership of that House; and (ii) a majority of at least two-thirds of the members of that House present and voting. If the motion is adopted by this majority, it is sent to the other House for adoption.

Once the motion is adopted in both Houses, it is sent to the President, who issues an order for the removal of the judge.

Given the procedure involved, no SC or HC judge has ever been removed through successful impeachment proceedings although they were initiated against six judges. Two of them, however, resigned midway through the process. 

Achary pointed out that even the impeachment process has nothing to do with past instances of alleged ‘misbehaviour or incapacity’ but can only refer to any such allegation during the tenure of a judge after she/he has been appointed.

 “Gowri’s past as a lawyer, being office-holder of a political party or unsavoury opinions expressed openly by her are of no significance. Now that she has taken oath, only her actual performance and any issues of moral turpitude that might arise could make any difference,” he said.

 Asked if the SC collegium wouldn’t have been aware of the social media videos in which Gowri is seen making the incendiary remarks, Achary said that there was a well-established procedure before a person was appointed as a judge, which included consultation with political functionaries, submission of intelligence reports and even a medical fitness certificate. 

Incidentally, during the hearing of the petition on Tuesday, Justice Sanjiv Khanna remarked that 'all these materials must have been known to the Collegium'. “It appears not,” one of the lawyers who petitioned the court had responded, referring to CJI DY Chandrachud’s statement on Monday that “the Collegium has taken cognisance of what was drawn to our attention or came to our notice after we formulated our recommendations on the recommendation of the…Collegium of the Madras High Court”.

Achary said the present situation was perhaps unprecedented.

“The framers of our Constitution clearly could not envisage such a situation from arising though they came out with such a detailed and illuminating document that’s an example for the whole world. It is now for Parliament to consider what checks and balances need to be put into place to address such an issue and for the CJI to review the Memorandum of Procedure (MoP) of appointment of judges. If necessary, an amendment to the Constitution can be made. It is a dynamic entity, already amended 105 times,” Achary said.

Commenting on the situation, Senior Advocate Sanjay Ghose said that while there was indeed no judicial remedy in the matter, the appointment was ad hoc and perhaps the judge wouldn’t be made permanent.

“It would have been appropriate for the judges comprising the SC collegium to hear the petition today on the judicial side, but it didn’t happen. The bench which heard the matter couldn’t possibly have issued a writ to the collegium for its administrative decisions,” he said.

He then went on to point out that the SC collegium, in its resolutions, had reiterated in its recommendation dated January 17, 2023 that advocate R John Sathyan be elevated as a judge of the Madras HC, observing that objections raised against him were unsustainable.

“It’s a sad day for judicial autonomy because the SC collegium itself, while recommending the name of Justice Gowri, had made it very clear that its previous recommendation with regard to the appointment of John Sathyan should be first implemented. As per the Three Judges cases, reiteration of the collegium’s recommendation becomes binding on the government. The government has not only not appointed Sathyan but gone ahead with appointing Justice Gowri and the others to Madras HC. To put it simply, Justice Gowri’s recommendation was a conditional one. Sathyan’s recommendation happened in April, 2022. So, it is nothing but disobedience of the law of the land by the executive,” Ghose said.

Advocate on Record in the Supreme Court Mahesh Thakur said that the problem was that the collegium was unable to get the Centre to execute its own orders.

“It’s perhaps a question of interpretation. The SC collegium may feel it is the law of the land for the government to appoint persons whose names it had recommended and then reiterated. But the government seems to have its own mind in the matter. What does the collegium do in such situation? It can issue contempt orders, but how does it get them executed? It’s a peculiar situation that seems to have its genesis in the fact that as per the NJAC judgment, the SC collegium and the government were to sit down to thresh out a new MoP for appointment of judges of SC and HCs. Perhaps the government feels it is being merely used as a post office and doesn’t have any say in such an important matter,” he said.

It may be recalled that the SC collegium had recommended Gowri’s name as a judge of the Madras HC on January 17, 2023.

On February 1, scores of members of the Madras High Court Bar Association led by noted counsels NGR Prasad and R Vaigai wrote a strongly-worded representation to the President of India and the SC collegium demanding the withdrawal of the recommendation, expressing ‘a sense of alarm and dismay’ at the development.

They referred to two interviews which Gowri gave to a YouTube channel purportedly hosted by the Bharatiya Janata Party’s ideological parent, the Rashtriya Swayamsevak Sangh. The interviews are titled ‘Cultural genocide by Christian missionaries in Bharat’ and ‘More threat to national security & peace? Jihad or Christian missionary?’.

In the second interview, the lawyers wrote that Gowri had said: “Like Islam is green terror, Christianity is white terror....Christian groups are more dangerous than Islam groups. Both are equally dangerous in the context of love jihad.”

The communique said that Gowri was closely connected with the BJP, having been appointed as chief of the party’s Kerala Mahila Morcha in 2010 and going on to actively campaign for it in Tamil Nadu in the run-up to the 2014 General Election.

The letter noted that Gowri’s “regressive views are completely antithetical to foundational Constitutional values and reflect her deep-rooted religious bigotry”. This, the lawyers argued, made her unfit to be appointed as a High Court judge.

The lawyers also drew the attention of the president and the collegium to an article written by her in the Organiser, the English language mouthpiece of the Rashtriya Swayamsewak Sangh.

“The Christian sectarianism and bigotry indulging in organised alluring conversions continuously has shrunk the majority Hindus to minorities,” Gowri wrote in 2012. “...But not a finger is lifted to stop allured and coerced conversions and to prevent Christians from conceiving communal conflicts.”

The advocates in their letters said her remarks in these interviews and the article amounts to hate speech and are likely to incite communal violence. They asked the President and the collegium how any litigant belonging to Christian or Muslim communities “ever hope to get justice in her court if she becomes the judge”.

“It is extremely critical, at this juncture, to safeguard the institution [judiciary] from being weakened by its own administrative action”, the letter added.

Incidentally, Union Law Minister Kiren Rijiju on Sunday, February 5 retweeted a post by endorsing the development. The post was made by SC advocate and former governor Swaraj Kaushal who said that there were past instances of sitting MPs representing political parties being elevated as HC judges.

On Monday, a bench headed by Chief Justice D Y Chandrachud had posted a plea by three Madras HC lawyers opposing the appointment of Gowri for hearing on February 10 but later advanced it to February 7 after senior advocate Raju Ramachandran again mentioned it, pointing out that the Centre has notified her appointment.

The petitioner lawyers, Anna Mathew, Sudha Ramalingam and D Nagasaila, in their plea referred to the alleged hate speeches made by Gowri against Muslims and Christians.

The plea said, "The petitioners are seeking appropriate interim orders injuncting the 4th Respondent (Gowri) from taking the oath of office as a judge of the High Court, in view of the 'grave threat' to the independence of the judiciary."

On Tuesday, the SC dismissed the plea even as Gowri was sworn in as an additional judge of the Madras High Court while the hearing was yet to get concluded.

“We are not entertaining the writ petitions. Reasons will follow,” said a special bench comprising Justices Sanjiv Khanna and Bhushan Ramkrishna Gavai. At the beginning of the hearing, Justice Khanna said there is a difference between eligibility and suitability. "On eligibility, there could be a challenge. But suitability... The courts should not get into suitability, otherwise the whole process will become haywire," he observed.

The court noted that there have been instances when an additional judge was not made permanent if performance was not satisfactory.