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Gowri took oath of office as the additional judge of the high court while the hearing was underway in the apex court, ”We are not entertaining the writ petition. Reasons will follow,” said a special bench comprising 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 oath to Gowri was administered by Madras High Court Acting Chief Justice T Raja at around 10:48 AM, while the top court was hearing arguments on why Gowri should not be elevated.
During the hearing, the bench told senior advocate Raju Ramachandran, who was appearing for the petitioners, that there is a difference between eligibility and suitability.
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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.
The bench observed that the petitioners have placed certain materials on record and these things must have been placed before the Collegium also which had recommended Gowri’s name for elevation as a judge on the high court.
”When the collegium takes a decision, it also takes opinion of the consultee judges who are from that particular high court and you cannot assume that judges who are from that particular high court are not aware about all these things,” the bench said. The top court said that Gowri is being appointed as an additional judge of the high court.
”If the candidate is not true to the oath and if it is found that she has not discharged the 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.
On Monday, a bench headed by Chief Justice D Y Chandrachud had in the forenoon put the plea of three Madras high court lawyers opposing the proposed appointment of Gowri for hearing on February 10 but later advanced it to February 7 after Ramachandran again mentioned it, saying the Centre has notified her appointment.
The petitioner lawyers, Anna Mathew, Sudha Ramalingam and D Nagasaila, in their plea referred to the alleged hate speeches made by Gowri against Muslims and Christians.
The plea said, ”The petitioners are seeking appropriate interim orders injuncting the 4th Respondent (Gowri) from taking the oath of office as a judge of the High Court, in view of the grave threat to the independence of the judiciary.” The plea relied on the 2016 NJAC judgement, and said it ”reiterated that absence of prejudice is the essence of an independent judiciary.” ”She has shown strong prejudice during her public speeches against citizens on the ground of their religious affiliation, which disqualifies her under Article 217(2)(b) from dispensing justice, without fear or favour, and affection or ill-will,” the plea alleged.
It alleged that Gowri has shown utter disdain towards the fundamental rights of citizens enshrined in Articles 14 and 15.
”She is, therefore, ineligible at the very threshold. Her proposed appointment as a judge poses a grave threat to the fair administration of justice and citizens’ right to the same under Article 21 of the Constitution,” it claimed.
The plea sought a direction that all the records and the material before the collegium of the Madras High Court and of the apex court relating to the resolution be summoned.
It also sought the setting aside of the recommendation as unconstitutional and void for lack of effective and informed consultation under Article 217 of the Constitution.
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 BJP.
Some bar members of the Madras High Court had written to the CJI seeking recall of the recommendation made for appointing Gowri as an additional judge of the high court alleging she made hate speeches against Christians and Muslims.
The plea, which was filed in the apex court on Monday, said Gowri be prevented from being appointed as a judge due to her disqualification as she has shown “strong prejudice during her public speeches against citizens on grounds of their religious affiliation”.
It said her elevation raises a question of whether the fundamental right to access to justice is infringed by the appointment of a judge ”with strong prejudices against citizens based on their religious faith”.
”The petitioners believe that relevant materials regarding the 4th Respondent’s (Gowri) publicly expressed views were not placed before the collegium of the Madras High Court or of this Hon’ble Court, and this has affected the consideration of her eligibility,” it said.