New Delhi: Last week, the Supreme Court appointed L.K. The appointment of Victoria Gowrie saw an unprecedented controversy.
Supreme Court Collegium did recommended Gauri’s promotion in the High Court on 17 January. However, his appointment has been controversial with the lawyers of the Madras High Court Write Chief Justice of India D.Y. Two petition Thereafter a petition was filed in the Supreme Court, in which a senior advocate R.K. Vaigai challenging his promotion recommendation.
he was appointed notified on Monday. After this, the Supreme Court on Tuesday refuse to intervene in Gauri’s appointment, saying that a candidate’s political affiliation or public expression of their views does not affect their work as a judge. While Gauri took oath as an additional judge of the Madras High Court on Tuesday, the detailed reasons for the court’s dismissal of the petitions were made public on Friday.
However, this is not the first time that the appointment of a judge has been challenged in the Supreme Court. In fact, in 1992, the apex court had rejected Appointing KN Srivastava as a judge of the Gauhati High Court, before he is sworn in as a judge. In Gauri’s case, the petitioners had also cited this 1992 case to challenge her appointment.
ThePrint explains why the Supreme Court struck down a judge’s appointment in 1992, but not Victoria Gauri’s.
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1992 case
The 1992 case pertained to a dispute over the appointment of KN Srivastava as a judge of the Gauhati High Court.
The President had notified Srivastava’s appointment on 15 October 1991. However, he was not yet sworn in as a judge. The question before the court was whether his appointment would violate Article 217 of the Constitution, which deals with the appointment of judges to high courts and lists the eligibility criteria for their appointment. Among other things, this provision states that a person shall be eligible to be appointed as a Judge of a High Court only if he has held ‘judicial office’ in India for at least ten years or Should have practiced as an advocate of the High Court. Year. Srivastava’s appointment was challenged by a lawyer in the Gauhati High Court and the petition was then transferred to the Supreme Court.
Before the Supreme Court, it was argued that Srivastava neither practiced as an advocate nor held any judicial office for ten years. At the time of his recommendation, he was working as Legal Adviser and Secretary, Law and Judicial Department, Government of Mizoram.
While there were allegations of corruption against Srivastava as well, the Supreme Court limited its decision to the issue of his eligibility for appointment to the High Court. It then declared that Srivastava was not in fact eligible to be appointed as a High Court judge, and set aside his appointment.
‘First time in independent India’
The 1992 judgment took note of the unusual nature of the charges against him. It was noted that “it was For the first time in the post-Independence era, this Court has been faced with a situation where it has to perform the onerous duty of determining the eligibility of a person who has been appointed as a Judge of a High Court by the President of India and who is in office waiting to enter.,
The petitioners in Gauri’s case relied on this judgment to show that the Supreme Court can set aside the appointment of a judge even if the appointment order has been issued.
However, Srivastava’s case was decided before the court The collegium system was crystallized in 1993 in the case of the Second Judges and in 1998 in the case of the Third Judges. Therefore, if the Supreme Court had intervened in Gauri’s appointment, it would have been the first such intervention against a recommendation made by the Supreme Court collegium.
‘related to merit’
However, the case involving Gauri did not challenge his “eligibility” to be appointed as a judge in the High Court. The Supreme Court’s judgment on Gauri by a bench of Justices Sanjiv Khanna and BR Gavai referred to previous judgments which distinguished between a candidate’s eligibility for evaluation and a candidate’s eligibility for evaluation.
Citing these judgments, it pointed out that while it may consider the merit of a candidate, the question whether a person is fit to be appointed as a judge involves the aspect of suitability and judicial is outside the scope of the review. In Gauri’s case, the concerns raised were related to her suitability and not her eligibility.
The Supreme Court then pointed out that the 1992 judgment was passed “in a matter relating to the eligibility of a person in whose favor a warrant was issued for appointment as a Judge of a High Court, but who was not eligible for appointment”. .A Judge of the High Court”.
Dismissing the petitions against Gauri’s appointment, “the ratio of this judgment cannot be stretched to invoke the power of judicial review to examine the suitability or merit of a candidate”.
(Edited by Smriti Sinha)