Acting Chief Justice of the Madras High Court T. Raja with Additional Judge of the Madras High Court Justice Laxman Chandra Victoria Gauri during the function in Chennai. , Photo Credit: ANI
A Constitution is the basic law that lays the foundation for the governance of a country. It lays down broad policy/directions to the authorities and institutions responsible for its implementation.
The basic eligibility criteria for appointment to several high constitutional offices are laid down in the constitution. Still, many silent disqualifications operate. These are enshrined and read into the eligibility criteria by the courts, guided only by the constitution and law and for the purpose of maintaining the integrity of the institution for which the office bearer is elected.
import disqualification
In BR Kapoor Vs. State of Tamil Nadu (2001), the Governor’s appointment of Jayalalithaa as Chief Minister despite her conviction for a criminal offense was questioned. Article 164(1) of the Constitution does not prescribe any disqualification for the appointment of Chief Minister. Article 173, however, disqualifies a person with a prior conviction from being a member of the Legislature. The court was faced with the question whether it could import a disqualification for appointing a person as Chief Minister when none had been determined. Supreme Court said yes. It held, “The will of the people as expressed through the majority party prevails only when it is in consonance with the Constitution. The Governor… takes an oath to preserve, protect and defend the Constitution and the laws (Article 159). The Governor… … cannot do anything that is contrary to the constitution and laws.” The Governor’s act of administering the oath after Jayalalithaa was convicted was declared unconstitutional.
The oath to be taken by a High Court judge under Schedule III of the Constitution requires a declaration of allegiance to the Constitution and the duty to be performed “without fear or favour, affection or ill-will”. The appointee must also declare that he will “uphold” the constitution and laws. Such an oath is unique to the judges of the High Court and the Supreme Court, as they are the guardians of the Constitution. Oath is a solemn assurance to the people that justice will be done without any partiality. Doesn’t a person showing religious bigotry disqualify him from taking the oath of office as a judge? Will such disability come under the purview of mere suitability or essential qualification?
keep an oath
“The qualification of a High Court Judge should not be understood in a pedantic manner,” declared the Supreme Court N. Kannadasan vs Ajay Khos (2009). An Additional Judge of the High Court, who was not appointed as a permanent Judge due to allegations of lack of integrity, was later recommended by the then Chief Justice of the Madras High Court for appointment as the Chairman of the State Consumer Commission Was. The appointment was declared illegal by the Supreme Court, which stated that an independent and impartial judiciary must be manned by persons who dispense justice “without fear or favour, malice or affection”. It held that a person who lacked the qualities necessary to abide by the oath of office of a judge was unfit for appointment to any judicial office. Thus, the capacity to dispense justice in the context of the constitutional oath was deemed non-negotiable.
Inability to observe the constitution as per the prescribed oath has been disqualified by a full bench of the Madras High Court in the case of KS Haja Sharif (1983) who, after taking the oath as a member of the Legislative Assembly, took the oath “in true faith and in accordance with the constitution”. Yours faithfully,” accepted the appointment as Honorary Consul General of Turkey in Madras. On such appointment, he had agreed to obey the instructions of a foreign state. The court said that such a person cannot be expected to be a member of the legislature as there would be a conflict of interest between the two countries and the constitutional oath to remove him would prevail.
selection of judges
Limiting the ‘eligibility’ for appointment as a High Court judge to a legal practice of at least 10 years as prescribed in Article 217(2) makes a travesty of the integrity and independence of the judiciary. Such simplistic interpretations turn the solemn assurance of a fair and impartial judiciary into an empty promise. Just as one can be removed from the post for breaking the oath, in the same way the constitution should be followed before taking the oath of office.
Faced with ambiguity in judicial appointments/transfers, the Supreme Court SP Gupta Vs Union of India (1981) directed the government and the Chief Justice of India (CJI) to disclose all materials. The judges recognized that their constitutional duty demanded such an inquiry through judicial review. He also said that if the inquiry found that all the material was not placed before the CJI (now Collegium), then the consultation/selection process is flawed and invalid.
The events leading up to the Supreme Court’s announcement regarding the selection of Justice Victoria Gowrie reveal the fault lines between the government and the judiciary. The CJI said in open court that now that the material brought before the collegium was not available earlier, the selection process came under the scanner. The collegium relies on government agencies to prepare background material on individuals recommended to be judges. Only transparency and accountability in the selection of judges will ensure an independent judiciary. The preamble of the constitution should allow for the selection of every judge.