This morning saw somewhat odd parallel proceedings before the High Court of Madras and the Supreme Court of India: even as L. Victoria Gowri was being sworn in as an additional judge of the Madras high court, a challenge to her appointment was being heard before a two-judge bench of the Supreme Court. The Supreme Court ultimately dismissed the petition “with reasons to follow”, despite the fact L. Victoria Gowri had been sworn in while arguments were in progress, and the case had become infructuous. Thus, what precedential (or other) value the Supreme Court’s “reasons” will have in an infructuous case remains to be seen.
The challenge against L. Victoria Gowri’s appointment was premised on her being a former office-bearer in the ruling party (she was the general secretary of the BJP’s Mahila Morcha), as well as the fact that on multiple occasions she had made statements that – it was argued – constituted hate speech against Christians and Muslims. Examples include “the list of Christian aggression is not ending. ‘Where there is a temple, there must be many Churches’ (sic) is their aggressive motto” and “As far as India is concerned, I would like to say Christian groups are more dangerous than Islamic groups. Both are equally dangerous in the context of conversion, especially Love Jihad.” Readers interested in a full catalogue can consult this piece.
In this article, I will not argue about whether these statements do or do not constitute hate speech: readers with the record before them, and an awareness of the political and social context in which we live, can make up their own minds on the issue. However, there are two constitutional concerns that have become evident through the course of this controversy, and which speak directly to the question of judicial independence.
The opacity of collegium proceedings
The first concerns the process of judicial appointments. One striking feature about this case is that, apparently, the collegium (in this case, the top three judges of the Supreme Court) was unaware of L. Victoria Gowri’s public statements before it recommended her name for appointment. This is evident from the fact that when the challenge to her appointment was “mentioned” for listing before Chief Justice DY Chandrachud yesterday, he stated:
“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.”
Despite this oral observation, however, the process of cognisance – or re-cognisance – was short-circuited when the chief justice of the Madras high court fixed L. Victoria Gowri’s swearing in for this morning. The politics of this will be debated long into the future, but bracketing that for the purposes of this post, what is striking is that the collegium came to know of L. Victoria Gowri’s statements after its own processes had been completed, and (theoretically) all that was remaining was for the government to complete the formalities of the appointment.
The reason why this happened is directly related to the opacity of collegium proceedings. Consider, for a moment, how this situation would have played out, say, in the United States, or South Africa, or Kenya – all jurisdictions where judicial appointment processes vary, but are open. In any of these jurisdictions, the names of the candidates being considered for judgeship would have been publicly known before the formal commencement of the selection process. Once these names were in the public, facts – such as L. Victoria Gowri’s statements – would have inevitably come to light. These facts would then have been within the knowledge of the selection bodies (the Senate in the United States, and judicial appointment commissions in South Africa and Kenya). The selection bodies would have taken them into account, and indeed, given that all these jurisdictions require judicial candidates to face questions from the selection bodies, L. Victoria Gowri could have been asked to explain and justify the statements, and how they related to her judicial philosophy – a discussion that would have been public. At the end of the process, the selection body would have made its decision.
Also read: Victoria Gowri: Has the SC Ever Quashed Its Own Collegium’s Recommendation?
In India, on the other hand, we have constructed for ourselves an extraordinary situation where the candidate’s name is effectively made public after their selection by the collegium. The selection process is entirely opaque and behind closed doors, where the parties involved are the collegium and the government (through the Intelligence Bureau). This not only has transparency costs, but also, the costs are asymmetrical: it is but obvious that where the government approves of a particular candidate, it can simply withhold relevant information from the collegium (indeed, this is the only possible implication from the Chief Justice’s observations yesterday). This, then, creates a situation like the present one: by the time that a candidate’s name is in the public domain – thereby allowing for relevant material is brought to the collegium’s notice by the public – the selection has already been made. Once again, the fall-out of this is asymmetric: given that the government retains the power of formal appointment, when it approves of a candidate, it can rush the process through (as happened in the present case). In other cases, the government can exercise a pocket veto (which it has also done with respect to the Madras High Court, by refusing to appoint a judge in the teeth of an express direction by the collegium).
One can therefore see that not only is the collegium’s opacity problematic in its own right, it is problematic in that it benefits the political executive. In that sense, it is somewhat like judicial evasion: the court’s failure to decide politically critical cases is problematic from a rule of law perspective, but it is more than that: it is problematic because status quo directly benefits the political executive.
The Janus-Faced Collegium
The above issue leads directly into the second problem. Now we have a situation (as in this case) where the collegium has made its recommendation. Fresh material has been found, but because the recommendation has already been made, the only effective remedy available is a legal challenge to the recommendation. Where does that legal remedy lie? Well, before the Supreme Court itself.
This creates the following situation:
– The Supreme Court Collegium’s recommendation is an administrative decision, made by an administrative body. As such, it is subject to judicial review on administrative law grounds. However, here is the problem: whatever the formal character of the collegium’s recommendation, it is a recommendation made by the three senior-most judges of the Supreme Court, the legal challenge to which now has to go before two or three of their own junior colleagues (as happened in this case).
– Furthermore, the Chief Justice of India, who heads the collegium, is also the master of the roster, and therefore will constitute the bench that will hear the challenge. In other words, therefore, the Chief Justice, acting on the administrative side, will constitute the bench that, acting on the judicial side, will hear a challenge to an administrative decision made by a body chaired by the Chief Justice.
This is, in short, a mess. It is a mess because you have a poly-vocal Supreme Court acting in three different avatars: the collegium, the master of the roster, and the judges are all involved in this decision-making process, the sanctity of which depends upon each of these three avatars acting entirely detached from each other. But as we all know, reality simply does not work that way.
Indeed, that reality does not work that way is evident from today’s hearing: both judges hearing the case exhibited repeated discomfort with being asked to sit in judgment over the collegium’s recommendation, and insisted that the collegium must have been aware of all facts when it made its recommendation (notwithstanding the Chief Justice’s public observation to the contrary!). One cannot entirely blame them: at the very least, this was an extremely embarrassing situation for all parties concerned, an embarrassment that – once again – is directly traceable to the collegium’s structural opacity.
It is important to note that it need not be this way. Consider the case of South Africa, where proceedings of the judicial appointments commission have been subjected to judicial review (see Hlophe vs Judicial Services Commission), and where the courts have directed the commission to make their deliberations public (Helen Suzman Foundation vs Judicial Service Commission).* This is not to suggest that the South African appointments process is perfect, but what does exist is a system of checks and balances, at the heart of which are the values of transparency and publicity. And this can only happen if there is a degree of separation between the judicial appointments commission and the court: this allows for a check, and it allows for a corrective mechanism in case of mistakes and errors (because to err is human). When, however, the appointments body (the collegium), the body for the constitution of benches (the chief justice’s office), and the judicial review body (the Supreme Court) are all effectively one and the same, but trying to play different and functionally independent roles, correction becomes very difficulty.
Furthermore, the judges insisted that the only question they could consider in judicial review was L. Victoria Gowri’s eligibility and not suitability. Leaving aside the question of whether alleged hate speech is a question of suitability or eligibility, this is a correct position, but once again, it depends on the question of suitability having been fully considered during the selection process. We therefore return to the problematic structural opacity of the collegium, and how it benefits the political executive: because the proceedings are opaque, and the only other party is the government, the government can influence the materials on the basis of which the collegium determines “suitability”. And once the collegium has made its determination, and the names are public – allowing for further material to come out – the question of “suitability” has now been foreclosed! It should be immediately obvious that this is severely detrimental to judicial independence.
Conclusion
Today’s judicial order dismissing the challenge to L. Victoria Gowri’s appointment was the chronicle of a failure foretold: once the collegium’s recommendation was in, it was obvious that – for the reasons explained above – there would be no going back, regardless of the desires and motivations of the individual actors involved. But taking a step back from the specific actors in this drama, it is important to locate the roots of the problem in the structure of our judicial appointments process. In this post, I have argued that the present structure is problematic both in principle, but also because it asymmetrically benefits the political executive. While L. Victoria Gowri’s case is a stark example of this asymmetry because – departing from the norm – her statements were plastered all over the public sphere, the problem does not begin or end with this appointment. What we need is an appointments process that genuinely safeguards judicial independence from executive dominance. The collegium (while a better option than pure executive control) is not it.
*I thank Sanya Samtani for explaining the South African cases to me.
This article first appeared on the author’s blog. It has been edited slightly for style. Read the original here.
Gautam Bhatia is a Delhi-based lawyer and author.
