The Supreme Court collegium’s January 17 recommendation that advocate Lekshmana Chandra Victoria Gowri be elevated as a judge of the Madras High Court has drawn criticism from lawyers and legal experts. Gowri is a member of the Bharatiya Janata Party and has previously made comments about Christians and Muslims that critics claim qualify as hate speech.
Experts have questioned how the collegium recommended her name when the information about Gowri’s controversial comments and her political affiliation is available in the public domain. When making recommendations, the collegium – which consists of the chief justice of India and two senior-most Supreme Court judges – is supposed to take into account the views of the Union government, which conducts a background check using intelligence agencies.
After this recommendation, it was pointed out that Gowri was the National General Secretary of the Bharatiya Janata Party Mahila Morcha.
Then, on January 30, Article 14 reported about Gowri’s long standing links to the BJP and pointed to several articles and interviews with her in which she makes disparaging remarks about religious minorities. For instance, in an interview from 2018, Gowri had said, “Like Islam is green terror, Christianity is white terror”. She had also said that both these communities engage in “love jihad” – a conspiracy theory commonly used by Hindutva groups to claim that Muslim men enter into relationships with Hindu women solely to get them to convert to Islam. She also claimed that Christianity was threatening “India’s national security and peace”.
Subsequently, on Wednesday, 21 lawyers from Madras High Court wrote to President Droupadi Murmu drawing her attention to these speeches and asking her to not clear Gowri’s name.
The letter states that Gowri’s views were “antithetical to foundational constitutional values and reflect her deep-rooted religious bigotry making her unfit to be appointed as a High Court judge”. This recommendation, the letter says, “will definitely dent the public perception about the impartiality of the judiciary”.
“Her statements in these interviews amount to hate speech likely to spread and incite communal discord/violence,” the letter says. It asks whether any “litigant belonging to Muslim or Christian community ever hope to get justice in her court, if she becomes a judge”.
The letter urges the president to “seek clarification as to how a person who has spread hate speech against our country’s minorities has been recommended to a high constitutional office of a judge of a High Court”.
Gowri’s Twitter account, which had references to her being a BJP member, has now been deleted. At least one interview of hers mentioned in the Article 14 report has also been taken down.
R Vaigai, a senior advocate from the Madras High Court who signed the representation sent to the president, argued that her deleting her comments from social media was proof of wrongdoing. “After our representation, she has removed her Twitter handle and some of the videos and photographs from social media,” she told Scroll.in. “So it is quite apparent that she knew that whatever was available on social media was not very complimentary for her.”
Opposing this letter, over 50 lawyers from Madurai sent a letter to the president on Friday saying that Gowri’s name should be cleared. These lawyers have pointed to the fact that several lawyers with political affiliations have been judges in the past.
However, Vaigai said that their representation does not contain any opposition to her being a member of a political party. “Our objection is that she has spread hate against people belonging to a particular religion,” she said.
Several legal experts and commentators have questioned how Gowri’s recommendation was cleared by the Supreme Court.
“In case of the present candidate [Gowri] it is just not being an office bearer in a political outfit but she had given hate speeches and written articles with such tones and therefore she may not be suitable for that post,” said former Madras High Court judge Justice K Chandru.
While making Gowri’s recommendation, the Supreme Court collegium would have the views of the Madras High Court collegium, the Tamil Nadu government and the Union government, including input from intelligence agencies.
Names to the High Court are first recommended by the chief justice of that High Court after consultation with two seniormost judges of that court. These names are forwarded to the chief minister and the governor of the state. The governor then forwards these names, along with the comments made by the chief minister, to the Union law ministry, which also conducts a background check using the Intelligence Bureau.
The ministry then forwards all this information to the chief justice of India, who consults the two seniormost judges at the Supreme Court and decides on the recommendation.
In light of this, several experts wonder whether this information was brought to the Supreme Court’s notice. “The Union government did not do a background check properly,” said former Supreme Court judge Justice Madan Lokur. “Either they did a background check and withheld information or did not do it [properly].”
Lokur said that it was “very unlikely” that the collegium would have recommended Gowri’s name despite the Union government flagging her comments.
Senior advocate Vaigai said that the collegium by itself only assesses the merits of a candidate based on their performance within the courtroom. “It is the IB [Intelligence Bureau] reports that should have been placed before the collegium which should have brought to the notice of the collegium all these facts [about Gowri],” she added.
While accepting their recommendation, a candidate also has to disclose their political memberships. “The attestation form signed by the candidates will have a column about political membership,” said former Madras High Court judge Chandru. “Whether this candidate had disclosed the same we do not know.”
He continued, “The speeches and activities pursuant [to] the [candidate’s] politics must find a place in the IB [Intelligence report. Under the present climate whether the IB will report [this information] is doubtful.”
Delhi-based senior advocate Sanjoy Ghose said that Gowri’s recommendation “puts a question mark on the independence of intelligence agencies”.
Ghose noted: “The executive and the Intelligence Bureau found so many objections against two candidates who were critical of the government and the prime minister on social media, but did not flag the person who has in her Twitter handle openly asserting herself as a member of a political party.”
This month, the Supreme Court collegium posted a statement saying that the Centre had objected to the names of two lawyers for elevation. One lawyer, the Centre said, was “selectively critical” of the government on social media and another had shared a report from The Quint that criticised Prime Minister Narendra Modi.
One senior advocate, who asked to remain anonymous, said that the Dravida Munnetra Kazhagam government in Tamil Nadu is likely to have given negative feedback for Gowri. Another senior advocate said that the collegium also works under various pressures, so it might be possible that it forwarded Gowri’s name despite knowing about her history.
Gowri’s name requires the Union executive’s clearance now, after which she will be appointed as a judge of the Madras High Court.