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New Delhi, Feb. 7 (PTI): The Supreme Court on Tuesday refused to entertain a plea seeking to restrain lawyer Lekshmana Chandra Victoria Gowri from taking oath as an additional judge of the Madras High Court, saying a "consultative process" had taken place before her name was recommended by the collegium for the appointment.
The apex court said Gowri has been appointed as an additional judge and if she is not true to the oath or does not discharge her duties in accordance with the oath, the collegium is entitled to take a view of that, while pointing out that there have been instances where people have not been made permanent judges.
Minutes before the top court dismissed two pleas against Gowri's appointment, she was administered the oath of office as an additional judge by Madras High Court's Acting Chief Justice T Raja at around 10:48 am.
"We are not entertaining the writ petition. Reasons will follow," said a special bench of Justices Sanjiv Khanna and B R Gavai, which assembled at 10:25 am to hear the plea, five minutes before the scheduled time of the court.
The two pleas, including one moved by three Madras High Court lawyers, opposed Gowri's appointment as an additional judge.
The bench told senior advocate Raju Ramachandran, who appeared in the matter for the petitioners, that there have been cases where people with political backgrounds have taken oath as judges of the Supreme Court and high courts.
"Mr Ramachandran, there have been cases where people with political backgrounds have taken oath over here also, as judges of the Supreme Court and high courts," it said.
"You have placed certain utterances of 2018 etc. on record. We have seen it. The fact of the matter is, all these must have been placed before the collegium," the bench observed.
It said when the collegium takes a decision, it also takes the opinion of the consultee judges, who are from that particular high court, and the petitioners cannot assume that those judges were not aware of all these things.
"In any case, the candidate is being appointed as an additional judge. If the candidate is not true to the oath and if it is found that he or she has not discharged duties as per the oath, is the collegium not entitled to take a view of that? And there have been instances where people have not been confirmed," the bench said during the hearing that went on for about 25 minutes.
The bench told Ramachandran that there is a difference between eligibility and suitability.
It said as far as suitability or merits are concerned, normally, even according to apex court judgments, courts should not go ahead, otherwise the whole process of appointment will become "unworkable".
Ramachandran referred to Article 217 of the Constitution, which deals with the appointment and conditions of the office of a high court judge.
The senior advocate said he is arguing on eligibility and that the decision-making process has been affected since necessary information may not have been placed before the collegium.
"This person has rendered herself incapable of taking that oath by her own public utterances and this has a direct bearing on eligibility...," he argued.
Ramachandran said this indicates a mindset that is not in tune with the ideals of the Constitution.
He said a person who is not in sync with the ideals and basic principles of the Constitution is unfit to take the oath because the oath talks of true faith and allegiance to the Constitution.
Ramachandran said there were two recent cases where social media posts were grounds for the government's objection to the candidates' appointment as judges and the collegium had an occasion to apply its mind.
"The collegium overruled that. The collegium said personal or political views of a candidate cannot be a ground for not recommending his name," Justice Gavai observed.
"As a matter of fact, before I came here, I also had a political background and I have been a judge for the last 20 years," he said.
Ramachandran said he has an informal list of some of the country' most distinguished judges and a political background brings a totally new and welcome element into the judicial discourse.
"There can be judges of conservative persuasion, there can be judges of radical persuasion, but that is what adds to the richness of judicial discourse," he said, adding that political views or a political background is not the question at all.
"It is hate speech. You may be a member of a party but a hate speech, which runs completely antithetical to the basic tenets of the Constitution, renders you unfit to take the oath," the senior lawyer said.
The bench said it is not that the collegium would not be aware of what has been said by the petitioners.
"If there was anything in it, they would have themselves reconsidered or whatever it was. But for us to go into all these aspects of suitability or merits or selection process would be like opening up a new jurisdiction which we have always refrained from doing," it said.
The senior advocate referred to the timeline and said the collegium's recommendation was of January 21 and on February 1, a representation was addressed to the collegium about these facts.
"If any member of the collegium had any reservation or anything, they would have taken it up," the bench said, adding that what the petitioners are suggesting is that the court, on the judicial side, asks the collegium to reconsider its decision.
"We cannot do that," it said.
Ramachandran said the petitioners are not asking the court to issue any writ to the collegium and it should take judicial notice of the fact that the collegium is still in the process of considering the representation.
He said there was "haste" as after the apex court said on Monday that the matter would be heard on Tuesday, the notification about the swearing in of judges came at 10.35 am.
"There are many instances of additional judges, I do not want to say much, but after finding their performance, the collegium did not confirm them," the bench said.
The apex court said it is right that even while appointing an additional judge, the process of scrutiny has to be very detailed.
"I think we have a fairly robust scrutiny process," Justice Khanna observed.
Senior advocate Anand Grover, who also argued in the matter, said the petitioners are not at a political issue at all.
He said this information on alleged hate speeches may have been withheld from the collegium.
The bench said there were consultee judges of the same high court and it has to presume that they had knowledge about it.
It said when names are recommended, a number of people write letters, both in favour of the candidates and against them.
"We are aware about the fact that before the names are sent to the collegium in Delhi, the complaints reach here," the bench said.
"The consultative process has certainly taken place," it said, adding that the process of appointment of judges originates from the high court concerned.
The petitioners -- lawyers Anna Mathew, Sudha Ramalingam and D Nagasaila -- in their plea referred to alleged hate speeches made by Gowri against Muslims and Christians.
The proposal to elevate the woman lawyer, who has been representing the Centre before the Madurai bench of the Madras High Court, has been mired in controversy after reports emerged about her alleged affiliation to the Bharatiya Janata Party (BJP).
Some bar members of the high court had written to the chief justice of India (CJI), seeking a recall of the recommendation made for appointing Gowri as an additional judge of the court and alleging that she had delivered hate speeches against Christians and Muslims.