Don’t Book a Judge by its Cover
G. Abdul Khadar Ibrahim v. Commissioner of Police, Madurai would have been just another ordinary service dispute filed by a dissatisfied employee against a vindictive government department. Ibrahim was a police constable who had applied for leave to go for Haj. When he came back and wanted further medical leave, he was denied.
10 months later, a preliminary enquiry was ordered about breaching service rules—both for going on leave without permission, as well as for keeping a beard in a manner not envisaged by the rules. 14 months down, these charges were mechanically upheld. 3 months later, his increment was stopped for a period of 3 years. On appeal, this period was reduced to 2 years, but the basic finding—that he had breached service rules—stood. Ibrahim approached the Madras High Court for relief.
The Madras High Court rightly held in Ibrahim’s favour. It held that the rules clearly exempted Muslims from the requirement of police officers to not keep a beard. On the contrary, it allowed Muslims to keep a beard for their lifetime, subject only to it being trimmed and tidy. The Department had misapplied the rule in applying it to Ibrahim, a practicing Muslim. The punishment was found “shockingly disproportionate”.
The judgment was entirely along expected lines. But the reason why this otherwise simple case made national news is because the judgment was delivered by Justice L Victoria Gowri of the Madras High Court whose appointment was resisted by several members of the Bar and civil society for her “obvious bias against India’s minorities”.
While she was taking oath as judge in Madras, the Supreme Court was hearing two petitions challenging her proposed appointment. The basis for the opposition to her judgeship were three speeches where she was seen criticizing Christian missionaries for engaging in mass conversion, accusing them of spreading “white terror” and calling them “more dangerous than Islamic groups”. She was also accused of hate speech against minorities in general claiming that “pseudo secularists in the name of secularism, in the name of globalization, in the name of global marketing, has made the constitutional promise of equality, a farce.” That she was an official in the Bharatiya Mahila Morcha, the women’s wing of the BJP was also pointed out to demonstrate that her appointment was owing to political pressure.
The same L Victoria Gowri, a feared bigot on the bench, had this to say when delivering judgment in this case: “India being a land of diverse religions and customs, the beauty and uniqueness of the land vest in the diversity of the citizen’s beliefs and culture…up-keeping discipline in the department does not permit the respondents to initiate punishment on employees belonging to the minority communities, particularly Muslims, for maintaining a beard which they do throughout their lives by following the commandments of Prophet Mohammed.”
One swallow does not make a summer. Yet, this judgment shows why it is important not to jump to conclusions regarding how judges will turn out on the basis of stray speeches and past political offices. Justices Krishna Iyer and Chelameswar had both been members of political parties, yet have been two of the most erudite judges on the bench of the Supreme Court of India, with no question of political bias.
This is not only true in India—Justices Stevens and Souter were both appointed to the United States Supreme Court by Republican Presidents, but turned out to be solidly progressive judges to the disappointment of most Republican party members. If speeches given by any of these four gentlemen prior to holding office were to be cherry-picked, a partisan picture could easily have been painted. Just because L Victoria Gowri is not a man, and does not have the standing in the legal profession that some of these men did, does not mean that she needs to be singled out.
None of this is to condone her outlandish statements. But her judgment in Ibrahim shows why one should not book a judge by the cover, in this case because of a few of her past speeches. The controversy surrounding her appointment may be understood as primarily about her. But this misses the point. It is yet another reminder of how the secrecy of the collegium system has completely vanquished any public confidence in the process of appointment of judges to the Supreme Court and High Courts. No one is quite sure whether the collegium knew all the facts, whether they considered it, and the reasons why she was recommended, while some other, seemingly competent men, were not. The taint that attaches to the process routinely gets deflected to candidates, in this case L Victoria Gowri. The rot is procedural, not personal.
The lack of a sensible procedure in appointment of judges is consistent with the one truly remarkable feature of this otherwise ordinary judgment. The action complained of was from 2018. An enquiry was ordered in 2019. All charges were only proved in 2021. The High Court judgment came in 2024. It took three years for a trifling departmental enquiry to be completed; another three for a simple judgment to be delivered on it. The procedure for a departmental enquiry being brought to a culmination cannot be this long and complex.
The tardiness with which it played out shows how as a nation we are not governed by the rule of law, but the rule by law. If we were governed by the rule of law, no senior officer would have punished a constable on grounds that were clearly untenable. Equally, a judgment saying so would not have taken three years to be handed down. Instead, the law played out with all its procedural complexities, but there was no light of justice at the end of this dark, legal tunnel.
This is because the judgment was grossly wrong on one count. Once Justice Gowri found that no Muslim could be dismissed for keeping a beard and that medical leave was wrongly denied, she should have quashed the punishment and the entire proceedings. Instead, she kept the matter alive and remanded it to the same department for a fresh decision. There was absolutely no warrant to further extend a process that had already gone on for six years. Will Ibrahim now have to wait another six years for justice? Only time will tell.
This curious remedy has made an otherwise simple case, a complicated one. Sometimes judgments in India mirror people in society—they rarely operate in binary terms of right and wrong, victory and defeat, good and bad. Justice Gowri and her judgments should still be scrutinised like those by all other judges. But if Ibrahim’s case has one lesson, let it be this—let us resist the urge to simplify everything and everyone into simple binaries. Like her judgment, Justice Gowri too contains multitudes. Let us live with that.
Disclaimer: The views expressed in this piece are of the author alone and do not necessarily align with the views of the Vidhi Centre for Legal Policy.
About the Authors
Arghya is the Founder and Research Director at Vidhi. His areas of specialisation are constitutional law and regulation of the digital economy. He has served on a number of government committees including the B.N. Srikrishna-led committee of experts on a data protection framework for India. Arghya has a number of academic publications on the Supreme Court and the Constitution in leading law journals such as Law Quarterly Review and Public Law. He is also a columnist at The Telegraph and The Times of India. He is the author of three books: "Independence and Accountability of the Indian Higher Judiciary" (Cambridge, 2019), "Hamīñ Ast? A Biography of Article 370" (co-authored - Navi Books, 2022) and most recently "The Colonial Constitution" (Juggernaut, 2023). Prior to founding Vidhi, he was at Oxford as a Lecturer in Administrative Law at Pembroke College.