From translucence to opacity: Judicial appointments after the Victoria Gowri case

To this end, I first break down the ‘reasoning’ of the court in Anna Matthew. Second, I highlight that the logic employed in this judgment is legally untenable, and third, I examine the consequences of this judgment for judicial review of judicial appointments.

Anna Matthew – The conspicuous absence of logic

This judgment was delivered by a two-judge bench of the court. While the court finally dismisses the writ petition and allows the appointment to go through, the reasons given by it are legally untenable. There are two interesting propositions in this regard that I intend to deal with here. First, that it is only the eligibility and not suitability of a person for the post of a judge which can be challenged; and second, that Collegium decisions are not subject to judicial review.

Eligibility versus suitability and the lost cause of transparency

The court begins by saying that the law on this point is ‘well settled and no longer res integra’. Thus, it is important to see what the settled law on this issue of judicial review over judicial appointments is. In the case of SCARA v Union of India (Second Judges Case), which the court cites with approval, it was held that limited grounds exist for judicial review in case of judicial appointments. One of these grounds was the ‘lack of consultation’ amongst the constitutional functionaries required to be consulted.

The court (in the Second Judges Case) says –

Except on the ground of want of consultation with the named constitutional functionaries or lack of any condition of eligibility in the case of an appointment, or of a transfer being made without the recommendation of the Chief Justice of India, these matters are not justiciable on any other ground, including that of bias, which in any case is excluded by the element of plurality in the process of decision-making. (emphasis mine)

Hence, apart from eligibility, the only other factor relevant is whether there was consultation – i.e., effective consultation – which can take place only if all information is on record. Naturally, the case was to turn on this relevant question i.e., whether the Collegium was aware of these allegations against Victoria Gowri. If it was not, that is enough grounds for judicial review to proceed.

Coming to Anna Matthew, the court held that Article 217 (which gives the qualifications necessary for one to qualify as a judge of the HC) simply gives the ‘threshold requirements’ for one to be eligible to be appointed as a judge of the High Court. It then proceeds to hold that it is only eligibility that one can challenge and not the suitability of a candidate. In Paragraph 3 the court says :

Therefore, when eligibility is put in question, the question would fall within the scope of judicial review. However, the question whether a person is fit to be appointed as a judge essentially involves the aspect of suitability and stands excluded from the purview of judicial review…  judicial review lies when there is lack of eligibility or ‘lack of effective consultation’. Judicial review does not lie on ‘content’ of consultation. (emphasis mine)

Essentially, the court seems to make a sharp distinction between eligibility and suitability. While the former is laid down in Article 217 and can be a basis for judicial review, the latter cannot. Later, there also seems to be a distinction made between ‘lack of effective consultation’ and ‘content of consultation’ as grounds for challenge. So, as mentioned earlier, the next question – the most important question on which this case will be dependent – was whether the Collegium was aware of the allegations and still chose to go ahead with the appointment. The Court seems to believe so when it says: “we reject the argument that the facts were not known and considered by the Collegium.”

Therefore, the court proceeds to hold that the Collegium was very well aware of the allegations and thus ‘effective consultation’ had taken place between the Collegium and other functionaries mentioned in the memorandum of procedure – and hence no ground for judicial review exists. There is only one problem with this statement- we do not know how the Court knows this, without asking the Collegium via a notice to respond to the petition.

Another point that seems to weigh with the court is that, even after the petitioners wrote to the collegium with a representation, requesting them to withdraw the appointment, the Collegium did not act, and hence by not acting, it actively chose to go ahead with its recommendation. Hence, the inaction of the Collegium meant that they still supported their recommendation.

It would be interesting to go back a couple of days when this matter was mentioned before CJI Chandrachud – who was a part of the Collegium that recommended Gowri’s appointment. While agreeing to the list the matter, he had said this in open court:

There are certain developments which have taken place, in the sense that the collegium has taken cognizance of what was drawn to our attention, or came to our notice, after we formulated our recommendations on the recommendation of the Chief Justice of the collegium of High Court of Madras. Since we have taken cognizance of certain developments which have taken place thereafter, we can list this petition tomorrow morning. I will constitute a bench. Let that go before the appropriate bench. (emphasis mine)

Hence, even if we follow the court’s own reasoning that it is only on ‘lack of effective consultation’ and not the ‘content’ of it that the appointment of a person be challenged, this makes the court’s conclusion nothing short of bizarre. It is clear from this statement that the Collegium was not aware of the allegations made against Justice Gowri when it chose to recommend her – which according to the Court’s own admission in Anna Matthew is enough for the need for judicial review over the process. In light of this admission by the CJI, the judgment seems to be existing in a parallel reality – where the facts are not really facts – and whatever facts there are, remain confined to the premises of the Supreme Court behind closed doors. However, a rather pertinent question does emerge, which is that if the Intelligence Bureau (IB) can otherwise give the Collegium adverse reports about other candidates because they shared an article that was critical of the Prime Minister, it is very hard to believe that the premier intelligence gathering body was simply unaware of the alleged hate speech at issue. Was this then, a deliberate withdrawal of information from the Collegium? Unfortunately, we shall never know.

Furthermore, as Venkatesan argues, the court does not follow its own precedents in this instance. The court in Anna Matthew relies on the case of Mahesh Chandra Gupta v Union of India to argue that suitability (as opposed to eligibility) is beyond the court’s power to examine. However, it fails to take into consideration that in the facts of that case: there was in fact effective consultation, and the same files were examined multiple times! There the court held that it could not test the suitability of the candidate after there were multiple consultations, which is arguably not the case here. Thus, going by its own precedent, the Supreme Court should have ideally called for the official records to ascertain this fact. Only if the Collegium was actually aware of these allegations, would the demand for judicial review fail.

No writ to the collegium?

Curiously, the court also makes an unqualified statement, holding that it cannot issue a writ to the Collegium. This statement has significant implications. If one reads Anna Matthew, the true conclusion that emerges is that no citizen can ever approach the court challenging the Collegium’s decision (both for eligibility or suitability) – even on the ground of lack of effective consultation – primarily because of the structure and working system of the Collegium. Thus, even if there was a question of eligibility, now that the court has refused to issue a writ, there is no remedy available to obtain. For example, let us suppose that the question was about Gowri J. being a citizen of India. Even in that case, if the court has held that it cannot issue a writ to the collegium to reconsider its decision, what remedy will lie?

Ideally, the Collegium, as an administrative body tasked with appointing judges, should be amenable to judicial review. But this puts the court in a rather awkward position. This also relates back to what Bhatia pointed out earlier: the structural issue of the Janus-Faced Collegium – where the only remedy after the Collegium has given its recommendations is available is before the Court – the same court staffed by people who made the (wrong) decisions in the first place. Can two ‘junior’ judges ever disagree with the five ‘senior-most’ judges in this regard? That is anyone’s guess.

The death of judicial review in judicial appointments

The court says:

Therefore, when eligibility is put in question, the question would fall within the scope of judicial review. However, the question whether a person is fit to be appointed as a judge essentially involves the aspect of suitability and stands excluded from the purview of judicial review. (emphasis mine)

Hence, any substantive discussion, deliberation, debate or even disagreement by the Collegium can possibly never be enquired into by the Court. Simply put, this puts the Collegium on a pedestal where no other body has ever been placed. With no judicial review of its decisions, no government or civil society representative and also no compulsion to disclose reasons for why it picks certain judges over others, the Collegium has truly become an imperium in imperio.

Unfortunately, this is not surprising. Over the past year years, in the name of judicial independence, transparency has continuously been given a go-by. In December 2022, in Anjali Bharadwaj v CPIO, this court held that the details of Collegium meetings are not subject to RTI i.e., what goes behind the closed doors in Collegium meetings can never be disclosed – apart from the resolution that is published. Qualitatively speaking, this is even worse than Anna Matthew. It is one thing if people are aware of the reasons but cannot approach the court, but it is quite another to say that people have no way of even knowing why certain choices are being made the way they are being made. The (flawed) assumption in both cases is that to ensure judicial independence necessarily requires you to give a go-by to judicial transparency. This not only erodes the people’s confidence in the institution, but it also helps the executive in putting forth the narrative of the NJAC – which is perhaps a bigger demon none of us want to encounter.

This opacity in judicial appointments is, however, not the case around the world. Take the example of South Africa where under its 1996 Constitution, judges are appointed by a Judicial Appointments Commission (‘JAC’). Under the JAC, public interviews and comments form an integral part of the appointment process. Instead of the JAC picking and choosing candidates randomly from the seniority pool, the JAC instead invites nominations from candidates. These nominations are then made public for comments – so those in consideration for a given position are known by the people – after which the JAC receives extensive comments from the civil society and the bar. The interviews are also held in open forums and even broadcasted. However, the final deliberations of the JAC happen behind closed doors.

In the case of Helen Suzman Foundation v Judicial Service Commission, the question of whether the deliberations of the JAC are subject to disclosure came up before the South African Constitutional Court. In stark contrast to the holding of Anna Matthew, the South African Court held –

… a blanket ban on disclosure, rather than a fact-specific case for non-disclosure, is unjustifiable in an open and democratic society in which the rule of law and the values of accountability, responsiveness and openness are paramount.  (emphasis mine)

The South African Court also rejected the argument that disclosure of information would affect ‘candour of deliberations’ or that it would impact the privacy of the individual in consideration (which are often the reasons given by the Collegium/judges to avoid disclosure of information). The court (rightly) held –

JSC members worth their salt ought to be in a position to stand publicly by views they have expressed in private deliberations…Generally the most embarrassing issues that could impugn the dignity or privacy of candidates are raised during interviews. And the interviews take place in public and are often widely publicised. It is this stage that should fill candidates with dread. These are applicants who have put themselves forward for an important public office, and who must expect, and do submit to, gruelling scrutiny at the public interview. (emphasis mine)

We can evidently see the stark contrast in approaches of the South African Court and the Indian SC. Interestingly, in the case of CPIO v Subhash Chandra Aggarwal, it was Justice Sanjiv Khanna – the same judge who now writes Anna Matthew, who in his concurring judgement had held –

Independence in a given case may well demand openness and transparency by furnishing the information…Judicial independence and accountability go hand in hand as accountability ensures and is a facet of judicial independence.

Thus, it seems that the court after this case has effectively done away with judicial review over judicial appointments as a whole – and has finally gone from translucence to opacity.

This article was first published in the Indian Constitutional Law and Philosophy blog: https://indconlawphil.wordpress.com/2023/02/14/from-translucence-to-opacity-judicial-appointments-after-the-victoria-gowri-case/

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