Constitutional Oath Not a Mere Formality
Context:
- The recent controversy surrounding Justice Victoria Gowri’s promotion has shed new light on the issue of judicial appointments and the constitutional oath.
Statutory provisions:
- The constitution is the foundational piece of legislation that establishes a country’s form of governance. For the organisations and entities tasked with putting them into action, it defines broad policies and directions. The fundamental requirements for nomination to various high constitutional posts are laid out in the Constitution.
- However, there are several unstated restrictions in place. Courts imply and read these into the eligibility requirements because they are totally driven by the desire to uphold the Constitution, the law, and the integrity of the institution for which the functionary is chosen.
- For instance, it was questioned whether the Governor had the authority to name Jayalalithaa as Chief Minister notwithstanding her conviction for a crime in the B.R. Kapur case (2001).
- There are no requirements listed in Article 164(1) of the Constitution that would prevent the nomination of a Chief Minister. However, Article 173 states that someone with a criminal history is ineligible to serve in the legislature.
- The court was compelled to determine whether it could impose a disqualification because there was no statutory prohibition against someone being chosen as Chief Minister. Yes, the Supreme Court made a decision.
- The decision declared that “the will of the people, as represented by the majority party, only prevails if it is consistent with the Constitution.” The governor takes an oath promising to uphold the law and the Constitution (Article 159). No measures that would violate the law or the Constitution may be taken by the governor. After Jayalalithaa was found guilty, the Governor was found to have violated the law when he took her under oath.
The oath of the constitution:
- Judges of High Courts are required by Schedule III of the Constitution to take an oath to support the Constitution and do their duties “without fear or favour, affection or ill-will.” The nominee must also affirm that they would “uphold” the law and the constitution.
- The judges of the High Court and the Supreme Court are the only people who can take such an oath because they are the guardians of the Constitution. The solemn promise of the oath to the people that justice will be carried out impartially.
Constitutional oath violations that resulted in disqualifications include the following:
- The Supreme Court ruled in N. Kannadasan v. Ajoy Khose that a judge’s eligibility “shall not be construed in a pedantic manner” (2009).
- Later, the Madras High Court’s then-chief justice made a suggestion for the appointment of a second High Court judge to act as the State Consumer Commission’s president. The Supreme Court declared the nomination to be illegal, ruling that only people who dispense justice “without fear or favour, ill-will or attachment” should serve on an independent and impartial court.
Deciding on the judges:
- The independence and integrity of the judiciary are mocked by limiting a High Court judge’s “fitness” for nomination to the minimal 10 years of legal experience required by Article 217(2). By giving it such a cursory reading, the solemn promise of impartial and just justice is reduced to meaninglessness.
- In reaction to the murky nature of judicial appointments and transfers, the Supreme Court ordered the Government and the Chief Justice of India (CJI) to publish all the materials in S.P. Gupta v. Union of India (1981). The judges felt that it was part of their constitutional obligation to conduct such an examination through judicial review. In addition, they said that if it came out that the CJI wasn’t given access to all the information, the consultation and selection processes were invalid and faulty (now known as the collegium).
- The circumstances that led to Justice Victoria Gowri’s selection by the Supreme Court highlight the differences between the executive and judicial branches of government. The selection procedure was questioned after the CJI asserted in open court that the papers currently before the collegium were unavailable previously.
- The background data utilised by the collegium to suggest judges comes from government entities. The selection of judges must be transparent and accountable if an independent judiciary is to be ensured.
Conclusion:
- Both the union executive and the higher judiciary must concur on the transparency of judge appointments.
