Judicial Appointments: A Bold Move By Supreme Court Collegium

In a rare move,the Supreme Court collegium makes its displeasure public over government's objections to five judicial appointments

<div class="paragraphs"><p>An image of the Supreme Court of India. (Source: Supreme Court of India website)</p></div>
An image of the Supreme Court of India. (Source: Supreme Court of India website)

Back and forth between the Supreme Court collegium and the central government on appointments in the higher judiciary has been a contentious yet usual occurrence for some time now. But what the apex court did on Thursday will be remembered as one of the boldest moves by the collegium.

The collegium, comprising Chief Justice of India DY Chandrachud and Justices Sanjay Kishan Kaul and KM Joseph, made its displeasure public over the central government's objections to the appointments of -

  • Advocate Saurabh Kirpal as judge of the Delhi High Court

  • Advocate Somasekhar Sundaresan as judge of the Bombay High Court

  • Advocates Amitesh Banerjee, Sakya Sen as judges of the Calcutta High Court, and

  • Advocate R John Sathyan as a judge of the Madras High Court

Homosexuality Not A Reason To Reject Appointment

The recommendation for Kirpal's elevation was unanimously made by the collegium of the Delhi High Court on Oct. 13, 2017 and approved by the Supreme Court collegium on Nov. 11, 2021.

In its note, the Supreme Court articulated the government's reasons for objecting to Kirpal's appointment. That his partner is a Swiss National, and he is in an intimate relationship and is open about his sexual orientation.

The apex court's note points to the Law Minister letter dated April 1, 2021, which said "homosexuality stands de-criminalised in India, nonetheless same-sex marriage still remains bereft of recognition either in codified statutory law or uncodified personal law in India. Moreover, it has been stated that the candidate’s “ardent involvement and passionate attachment to the cause of gay-rights” would not rule out the possibility of bias and prejudice."

Dealing with both the objections, the apex court collegium has stated that one, there is no reason to pre-suppose that the partner of the candidate, who is a Swiss National, would be inimically disposed to our country, since the country of his origin is a friendly nation.

Second, in view of the constitutionally recognised rights which the candidate espouses, it would be manifestly contrary to the constitutional principles laid down by the Supreme Court to reject his candidature on that ground.

The fact that Saurabh Kirpal has been open about his orientation is a matter which goes to his credit. As a prospective candidate for judgeship, he has not been surreptitious about his orientation.
Supreme Court Collegium

The collegium resolves to reiterate its recommendation dated Nov. 11, 2021 for appointment of Saurabh Kirpal as a judge of the Delhi High Court which needs to be processed expeditiously, the note said.

Views On Social Media Not An Indication Of Bias

As per the collegium's note, the government has objected to Sundaresan's appointment on account of his views on social media on several matters which are the subject matter of consideration before the courts.

Expressing its disagreement, the collegium has noted that Sundaresan's views on social media do not furnish any foundation to infer that he is biased.

The manner in which Sundaresan has expressed his views does not justify the inference that he is a “highly biased opinionated person” or that he has been “selectively critical on the social media on the important policies, initiatives and directions of the government” (as indicated in the objections of Department of Justice), the collegium has said.

Nor is there any material to indicate that the expressions used by the candidate are suggestive of his links with any political party with strong ideological leanings. All citizens have the right to free speech and expression under Article 19(1)(a) of the Constitution.
Supreme Court Collegium

Expression of views by a candidate does not disentitle him to hold a constitutional office so long as the person proposed for judgeship is a person of competence, merit and integrity, the collegium has stated. He's specialised in commercial law and would be an asset to the Bombay High Court which has a large volume of cases of commercial and securities laws, among other branches, the collegium said, while reiterating his appointment.

The collegium made similar observations in the case of Advocates Banerjee, Sen and Sathyan.

For Banerjee and Sen, it noted that "after the Supreme Court Collegium reiterated the proposal on Sep 1, 2021, it was not open to the Department to repeatedly send back the same proposal which has been reiterated by the Supreme Court Collegium after duly considering the objections of the government".

For Sathyan, the apex court noted that the adverse comments of the Intelligence Bureau in respect of posts made by him i.e. sharing an article critical of the Prime Minister and another post regarding committing of suicide by a medical aspirant candidate in 2017 will not impinge on his suitability, character or integrity.