Is this India’s most controversial judge?

L Victoria Gowri who allegedly delivered hate speeches against Indian minorities took oath as an additional judge in Madras high court. Sravasti Dasgupta speaks to judicial experts on why the collegium system needs a rehaul

The appointment of a judge who allegedly delivered hate speeches in India has raised questions about judicial independence as experts call for a rehaul of the system of appointing judges.

L Victoria Gowri took oath as an additional judge in Madras high court in India’s southern Tamil Nadu state on 7 February almost simultaneously as the Supreme Court held a rare hearing challenging her appointment.

Dismissing the petitions filed against her that alleged that she was unfit to be a judge, the Supreme Court bench comprising justices Sanjiv Khanna and BR Gavai said that they cannot get into Ms Gowri’s “suitability” as a judge.

“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,” Justice Khanna was quoted as saying by news portal LiveLaw.

There was high drama as the court held a rare hearing following a writ petition that was filed a day earlier. On 1 February, members of the Madras High Court bar sent a representation to the Supreme Court to recall Ms Gowri’s appointment.

In their letter signed by 21 members, the lawyers said that Ms Gowri’s “regressive views” are “completely antithetical to foundational Constitutional values and reflect her deep-rooted religious bigotry making her unfit to be appointed as a High Court judge”.

Ms Gowri’s name was recommended on 17 January by chief justice DY Chandrachud, and justices Sanjay Kishan Kaul and KM Joseph as part of three-judge Supreme Court panel that is called the collegium.

The collegium includes the apex court’s five senior most judges and it appoints, transfers and elevates judges in India’s higher judiciary. The three senior-most judges in the collegium also appoint judges to the country’s high courts.

Soon after the collegium recommended her name, it emerged that the judge was the national general secretary of India’s ruling Bharatiya Janata Party (BJP)’s Mahila Morcha (women’s wing).

On 30 January, Article 14 reported that Ms Gowri’s now deleted Twitter handle was called Chowkidar Victoria Gowri (guard Victoria Gowri) – a reference to prime minister Narendra Modi’s 2019 general election campaign in which citizens followed the prime minister in proclaiming themselves as security guard of the nation.

The report also revealed video interviews that Ms Gowri had given in 2018 along with two articles she wrote in 2012 and 2013 in Hindu right wing magazines affiliated to the Rashtriya Swayamsevak Sangh – the BJP’s ideological parent organisation.

In these Ms Gowri described Christianity as a “threat to India’s national security and peace” and also accused Islam of being “dangerous”.

She also said that both Christians and Muslims were responsible for love jihad – a right-wing conspiracy theory which claims Hindu girls are being forcefully converted by marriage.

While the new reports created an uproar, the federal government notified her appointment on 6 February.

On the same day the Madras high court lawyers moved the top court challenging her appointment.

Appearing for the petitioners, advocate Raju Ramachandran said that the challenge was not due to her political affiliation but her “hate speeches.”

A day before the hearing, agreeing to hear the petitions, the chief justice said that the collegium has taken cognizance of the new materials that had appeared after it had made its recommendation.

However the bench of justices Khanna and Gavai dismissed the petitions challenging her appointment and said that they cannot ask the collegium to “reconsider”.

“We have a very fairly robust scrutiny process… Let’s not interfere with this… Assuming that the Collegium may not have taken all those facts into account. That may not be appropriate,” Justice Khanna said.

Ms Gowri’s appointment and the Supreme Court’s decision not to ask its own collegium’s system to reconsider has raised questions about judicial independence and the survival of the collegium.

The collegium system has come under criticism in recent months for its opaque nature and control exercised by the judiciary in appointing its own members.

The system is also at the centre of an ongoing confrontation between India’s judiciary and the executive over the appointment of judges.

In December, federal law minister Kiren Rijiju criticised the collegium system in a reply in parliament for “lack of transparency, objectivity and social diversity”.

He has also alleged that the collegium has “hijacked” the constitution by deciding to appoint judges.

In November the Supreme Court had also expressed its dismay over the law minister’s comments. India’s attorney general R Venkataramani also said that the collegium is waiting for the judges’ names to be cleared by the government which have been kept pending.

In January, the Supreme Court collegium for the first time made public its reasons to reject the objections raised by the federal government on five judges it had recommended to be appointed.

Experts say that Ms Gowri’s appointment has once again exposed the fault lines in the system of appointing judges in the country.

“It was a sad day for judicial autonomy and independence,” says senior advocate Sanjoy Ghosh to The Independent.

“The collegium while recommending Justice Gowri had said that this recommendation will only take effect after the Christian candidate John Sathyan who was recommended one year ago should take effect.

“That recommendation was rejected by the government and reiterated by the Supreme Court in April and then January.

“It was binding on the government to appoint Mr Sathyan before Ms Gowri.”

The court revealed in its objections made public in January that the federal government had opposed Mr Sathyan’s appointment as he had shared articles critical of prime minister Modi.

“The SC as an administrative body as well as the judicial side as seen in Tuesday’s hearing did not take any notice of this sadly,” Mr Ghosh said.

Former Supreme Court judge Madan B Lokur says that even if the material relating to Ms Gowri’s hate speech came to the collegium’s notice after its recommendation as stated by Mr Chandrachud, it is not clear what steps were taken after that.

“It is not clear what steps, if any, were taken by the chief justice. Did he bring it to the notice of the other judges in the collegium or ignored the information?” he tells The Independent.

“It is also not clear how the learned judges hearing the petitions assumed that information about the hate speeches was available with the collegium and they must have taken an informed decision about the appointment despite availability of the information,” he says.

According to former Madras high court judge K Chandru, Ms Gowri’s case shows the “weakness of the collegium system needs to be explored.”

He adds that while the National Judicial Appointments Commission (NJAC) Act to end the collegium failed – there needs to be consensus in coming up with a permanent mechanism.

“We need to think of a permanent mechanism and decide if we should continue with the collegium or protect the independence of the judiciary. It is time to question the wisdom of the collegium that we will appoint ourselves,” he says.

“The collegium is a weak establishment because its decisions are ad hoc, and appointments are also ad hoc. In addition-by constituting the bench the chief justice as master of the roster can also decide the outcome of the bench.”

“The NJAC was struck down but what have we done since then to reform the system of appointing judges,” he says.

In 2015, the Supreme Court rejected the NJAC Act passed by the federal government the year before through the 99th Constitutional Amendment which sought to give politicians and civil society a final say in the appointment of judges to the higher judiciary.

Justice Lokur says that while he would not blame the collegium-there has been an overall collapse in the recommendation process.

“I would say that there has been an overall collapse in the recommendation process in the present case, beginning with the recommendation made by the High Court collegium and concluding with the warrant of appointment having been issued,” he says.