Constitutional oath is not a mere formality

Source– The post is based on the article “Constitutional oath is not a mere formality” published in The Hindu on 14th February 2023.

Syllabus: GS2- Judiciary

Relevance– Appointment of judges

News– Recently, the appointment of Justice Gowri as SC judge has been in controversy due to hate speech given by her in the past

What is the constitution?

It is the basic law that lays the foundation for the governance of a country.

It lays down broad policy and directives for the authorities and institutions tasked with its implementation.

What is an oath by a judge of a High Court under Schedule III of the Constitution?

It requires a declaration of allegiance to the Constitution and performance of duties “without fear or favour,affection or ill-will”.

The appointee must also declare that she will “uphold” the Constitution and the laws.

What is the importance of oaths declared by higher courts in various cases?

SC in N. Kannadasan v. Ajoy Khose (2009) case declared that eligibility of a judge of a High Court should not be construed in a pedantic manner.

An additional judge of the High Court, who was not appointed as a permanent judge due to allegations of lack of probity, was later recommended by the then Chief Justice of the Madras High Court for appointment as president of the State Consumer Commission.

SC held that a person who lacked the qualities necessary to adhere to the oath of office of a

the judge was ineligible for appointment to any judicial office.

Madras High Court in the case of K.S. Haja Shareef (1983) held that Inability to adhere to the

The Constitution as per the oath prescribed will be ground for disqualification. The person accepted appointment as Honorary Consul General of Turkey at Madras.

Why does the appointment of Justice raise important questions?

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.

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.

It held that their constitutional duty demanded such scrutiny through judicial review. If on scrutiny it was found that all the materials were not before the CJI, the selection process is

defective and invalid.

CJI expressed in case related to appointment of Justice Victoria Gowri that materials now brought before the collegium were not available earlier. It reveals the fault lines between judiciary and executive.