Advocate Victoria Gowri’s elevation to the Madras High Court has raised many constitutional issues for legal scholars and also brought back the one and only Judgment of the Supreme Court quashing the appointment order of a High Court Judge, before subscribing to the oath.
On Monday, the Central Government notified the appointment of Advocate Victoria Gowri and 4 Other Advocates as Additional Judges of the Madras High Court.
It is important to note that the appointment has been made in the exercise of power under Article 224 (1), which provides the appointment of Additional Judges for a maximum period of two years.
The Petitioners who have challenged the appointment of Advocate Gowri place heavy reliance on a 1992 Judgment of the Supreme Court namely Kumar Padma Prasad vs Union of India reported in (1992) 2 SCC 428.
The abovementioned case is one of its kind and unprecedented, as the Supreme Court was hearing a Petition challenging the appointment of one K.N. Srivastava as Judge of Gauhati High Court, but before taking oath.
In this case, the appointment order was issued by the President of India in the exercise of power under Article 217(1) of the Constitution and the contention before the Supreme Court was that Mr Srivastava is inligible to be appointed as Judge of High Court, as he lacks 10 years experience as a “Judicial Officer”.
The Prime Minister approved the appointment on September 24, 1991 and the President of India on September 30, 1991. The Warrant of Appointment was signed by the President on October 15, 1991 and notification appointing Srivastava as a Judge, at Gauhati High Court was issued on October 25, 1991.
However before he could take the oath, Kumar Padma Prasad, a practicing lawyer of the High Court filed a Writ Petition Challenging the Appointment of K.N. Srivastava .
A three Judges Bench of the Supreme Court comprising of Justices Kuldip Singh, P.B. Sawant and N.M. Kasliwal ruled that the appointment of K.N. Srivastava as Judge of Gauhati High Court is infraction of Article 217(2) of the Constitution.
The Court observed:
It is for the first time in the post-independent era that this Court is seized of a situation where it has to perform the painful duty of determining the eligibility of a person who has been appointed a Judge of High Court by the President of India and who is awaiting to enter upon his office. We looked into the official records and permitted learned counsel for the parties to examine the same. We are at a loss to understand as to how the bio-data of Srivastava escaped the scrutiny of the authorities during the process of consultation under Article 217(1) of the Constitution of India. A cursory look at the bio-data would have disclosed that Srivastava was not qualified for appointment as a Judge of the High Court on the admitted facts which have been on the official files all the time. Needless to say that the independence, efficiency and integrity of the judiciary can only be maintained by selecting the best persons in accordance with the procedure provided under the Constitution. These objectives enshrined under the Constitution of India cannot be achieved unless the functionaries accountable for making appointments act with meticulous care and utmost responsibility.
The Operative part of the Judgment is as follows:
We allow transferred writ petition of Kumar Padma Prasad and declare that K.N. Srivastava, on the date of issue of the warrant by the President of India, was not qualified to be appointed as a Judge of the High Court. As a consequence, we quash his appointment as a Judge of the Gauhati High Court. We direct the Union of India and other respondents present before us not to administer oath or affirmation under Article 219 of the Constitution of India to K.N. Srivastava. We further restrain K.N. Srivastava from making and subscribing an oath or affirmation in terms of Article 219 of the Constitution of India and assuming office of the Judge of the High Court. We direct the Registry to send a copy of this judgment to the President of India for his consideration and necessary action in terms of our judgment. There shall be no order as to costs.
In K.N. Srivastava’s Case, the argument before the Supreme Court was two-fold, firstly he was ineligible in terms of Article 217 (2) of the Constitution to become a High Court, due to the lack of 10 years of experience as a Judicial Officer and other argument was lack of “full and effective” consultation in terms of Judgment of Supreme Court in terms of the case of SP Gupta vs Union of India, popularly known as First Judges Case.
What is the Difference Between Two Cases?
In Victoria Gowri’s case there is no issue of lack of eligibility but the Petitioner’s main contention is that there is lack of “full and effective” consultation due to which the material regarding alleged hate speeches by Victoria Gowri was brought to the knowledge of the Collegium and Central Government.
The case of Gowri Victoria is different from K.N. Srivastava on two counts, firstly K.N. Srivastava was appointed as Judge of the High Court under Article 217 (1) but before taking oath his appointment order was stayed.
Here Ms Gowri has been appointed under Article 224 as Additional Judge for a period of 2 years and there is no stay on her taking oath. (till publication of this article there is no stay)
So the next question would be whether the appointment of an Additional Judge of the High Court, who has taken the oath of office, can be quashed by the Supreme Court. Or Whether the procedure of impeachment would be followed?
The procedure of impeachment is highly unlikely for the reason that it can be only on two grounds i.e. proved misbehaviour or incapcaity, here both the grounds cannot be invoked.
Further the process of impeachment is only for “Judges” the Consitution is silent on the issue of removal of an Additonal Judge.
But we should remember that Supreme Court has omnibus powers and if it can send a sitting High Court Judge (Karnan) to Jail then it can pass any order.
Therefore challenge to Ms. Victoria Gowri’s appointment opens many legal issues, which needs to be addressed.
Written by-
Rajat Rajan Singh
Advocate and Editor-in Chief of Law Trend
