TeaHe courted controversy over his recent appointment Advocate L Victoria Gauri As an additional judge of the Madras High Court, he raised the question whether people with political allegiance should be made judges. Disclosure: The author led the team of lawyers that challenged Gauri’s appointment before the Supreme Court. The challenge was not due to membership of any political party. This was on the grounds that his publicly expressed views showing religious hatred were not in consonance with the basic tenets of the Constitution, thus making him “ineligible” for appointment.
In fact, many people with previous political associations have held high judicial positions over the years – both in the Supreme Court and in the High Courts, often with distinction and sometimes without.
Supreme Court Justice, Political affiliation
There are only two judges in the history of the Supreme Court who went to jail during the freedom movement. The first was Bachchu Jagannadhadas who was a Supreme Court judge from 1953 to 1958. He was a member of the Congress party and went to jail during the Quit India Movement. The other was Justice Jeevan Lal Kapoor who served on the Supreme Court from 1957 to 1962. He was a member of the Punjab Socialist Party and went to jail in 1930 for the Salt Satyagraha. Justice KS Hegde, one of the three judges who were superseded by Indira Gandhi for the post of CJI in 1973, later revived his political career and became the Speaker of the Lok Sabha. He also came to the Supreme Court with a political past. Nominated by the Congress Party, Hegde served as a member of the Rajya Sabha from 1952 to 1957. Soon after, he became a judge of the Mysore High Court and then in 1966 became the first Chief Justice of the Delhi High Court. He was appointed to the Supreme Court in 1967 and resigned after his supersession in April 1973.
Justice VR Krishna Iyer, who was a Supreme Court judge from 1973 to 1980, was also an independent legislator supported by the then undivided Communist Party of India (CPI). He also served as the Minister for Home, Law, Prisons, Power, Irrigation, Social Welfare and Inland Water in the first communist government of India led by EMS Namboodiripad from 1957 to 1959.
Justice PB Sawant, during his lawyer days, was a member of the Kisan and Shramik Party in Maharashtra. He later became a judge of the Bombay High Court and then the Supreme Court from 1989 to 1995. Justice S. When Ratnavel Pandian was a lawyer, he was the Tirunelveli district secretary of the Dravida Munnetra Kazhagam. He was appointed as a judge of the Madras High Court in 1974 and later served on the Supreme Court bench from 1988 to 1994. Justice Aftab Alam, a Supreme Court judge from 2007 to 2013, was a member of the Communist Party of India. A few years before his first appointment to the Patna High Court. Justice V Gopal Gowda has been a member of the CPI(M). He later became a judge of the Karnataka High Court in 2007 and was on the Supreme Court bench from 2012 to 2016. Justice Baharul Islam, who was elected to the Rajya Sabha in 1962 and again in 1968 as a member of the Congress, became a judge. Judge of the Assam and Nagaland High Court (now Gauhati High Court) in 1972 and elevated to the Supreme Court in 1980. Controversially, he resigned from the apex court in 1983 and again became a Rajya Sabha member of the Congress party.
Read also: From BJP leader and Hindutva activist to Madras HC judge – who is L Victoria Gauri
Chief Justices of High Courts
Formidable names from the High Courts also come to mind. Bombay High Court Justice VM Tarkunde (1957–1969) was closely associated with MN Roy (former communist and radical Congressman and founder of the Radical Democratic Party who turned into a radical humanist movement). In fact, he was the General Secretary of the Radical Democratic Party (RDP) from 1944 to 1948. Justice Rajinder Sachar, who retired as Chief Justice of the Delhi High Court in 1985 (one of Indira Gandhi’s “transferred” judges) was a member of the Socialist Party. Justice M Rama Jois who retired as Chief Justice of the Punjab and Haryana High Court in 1992 also had a post-retirement political career with the Bharatiya Janata Party. Even during his lawyer days, he was a member of both the RSS and the Bharatiya Jana Sangh before being appointed a judge of the Karnataka High Court in 1977.
Judges from different ends of the political spectrum have brought to bear a different sensibility based on their political experience and this has enriched judicial discourse. Justice L Victoria Gowrie’s political affiliation does not in itself make her ineligible, although temporal proximity to that political association and her appointment may have been a factor in assessing her “suitability”. It was subjective for the collegium to receive whatever inputs it could, and in the exercise of judicial review, the courts could not scrutinize it.
Apart from being disqualified for appointment because of his views, the other ground of challenge was that those views were not brought to the notice of the collegium by the executive. The petitioners argued that this impeded the decision-making process of the Collegium, which recommended the same.
The author is a senior advocate in the Supreme Court of India.
(Edited by Ratan Priya)