Constitutional Oath is not a mere formality

Context: 

The events leading up to the pronouncement of the Supreme Court regarding the selection of Justice Victoria Gowri reveal the fault lines between the government and the judiciary. 

Constitutional Provisions:

• Basic eligibility criteria for appointment to several high constitutional offices are prescribed in the Constitution. Yet, many silent disqualifications operate. These are implied and read into the eligibility criteria by courts, solely guided by the objective of upholding the Constitution and the law and the integrity of the institution for which the functionary is chosen.

Importing a disqualification:

• In B.R. Kapur v. State of Tamil Nadu (2001), the Governor’s appointment of Jayalalithaa as Chief Minister despite her conviction for a criminal offence was called in question. The Governor’s act of administering oath to Jayalalithaa after her conviction was declared unconstitutional.
• Article 164(1) of the Constitution does not prescribe any disqualification for the appointment of a Chief Minister. 
• Article 173, however, disqualifies a person with prior conviction from being a member of the Legislature. 
• The appointee must also declare that she will “uphold” the Constitution and the laws. Such an oath is unique to the judges of the High Court and the Supreme Court, since they are the sentinels of the Constitution. 

Adhering to the oath:

• Inability to adhere to the Constitution as per the oath prescribed has been held to be a disqualification by a full Bench of the Madras High Court in the case of K.S. Haja Shareef (1983), who, after taking oath as a member of the Assembly to “bear true faith and allegiance to the Constitution,” accepted appointment as Honorary Consul General of Turkey at Madras. 
• On such an appointment, he had agreed to abide by the directives of a foreign State. The court held that such a person cannot be expected to be a member of the Legislature since a conflict of interest between the two countries would arise and the constitutional oath would prevail to unseat him.

Selection of Judges:

• To limit ‘eligibility’ for appointment of a High Court judge to a minimum of 10 years of legal practice prescribed in Article 217(2) makes a mockery of the integrity and independence of the judiciary. 
• Just as breach of the oath will result in removal, adherence to the Constitution should precede taking the oath of office.
• Faced with opacity in judicial appointments/ transfers, the Supreme Court in S.P. Gupta v. Union of India (1981) directed the Government and the Chief Justice of India (CJI) to disclose all the materials. The judges held that their constitutional duty demanded such scrutiny through judicial review and  on scrutiny it was found that all the materials were not before the CJI (now collegium), the consultation/ selection process is defective and invalid.

Need to follow: 

• The collegium relies on the government’s agencies to produce background materials of persons recommended to be judges. 
• Transparency and accountability in the selection of judges alone will ensure an independent judiciary. 
• The Preamble to the Constitution should permeate selection of every judge.

                                                                                                                                                         News Source: The Hindu