The Supreme Court Collegium’s recent resolutions reiterating the names of advocates for appointment as judges in various high courts are unusual for the radical transparency they observed in bringing to light the Union Government’s objections to the recommended appointees, along with providing clear reasons for dismissing these objections. We look at the reactions of members of the legal community to these developments.
ACTIVISTSand proponents of judicial reform have long complained that the appointment of judges in India is shrouded in secrecy. So the unprecedented move by the Supreme Court Collegium to publicly disclose the objections of the Union Government to its recent recommendations comes as a breath of fresh air to many. Public interest lawyer Prashant Bhushantweeted this on the issue:“Bravo! The SC collegium stands firm & tall.”
Advocate and constitutional law scholar Gautam Bhatiasaid,“For various reasons, I suspect this is going to pass under the radar, but for me, this is where the collegium has actually stuck its neck out and shown courage.”
On the other hand, concerns over the need for the National Judicial Appointment Commission (NJAC), heldunconstitutionalin 2015, are creeping back. This comes at a time when Kiren Rijiju, Union Minister of Law and Justice, recently described the Collegium as “alien” to the Indian Constitution. He remarked that there is no country where judges appoint themselves.
The Supreme Court Collegium comprising the then CJI N.V. Ramana and Justices U.U. Lalit and A.M. Khanwilkar made history when theyapproved the proposal to elevate Kirpal, an openly gay person, as a judge at the Delhi High Court on November 14, 2021. But the Union Government had returned the proposal to the Collegium on November 25, 2022.
There were two objections to his appointment by the government: First, Kirpal’s partner is a foreign national — a Swiss human rights activist, Nicolas Germain Bachmann; second, he is in an “intimate relationship” and is open about his sexual orientation.
Earlier, in a response to The Leaflet’s application under the Right to Information Act, the Ministry of Law and Justicedisclosed that the inordinate delay in Kirpal’s appointment was due to “intelligence” inputs that cannot be shared with the public.
Now, while reiterating the recommendation, the Collegium rejected the objections of the Union Government by recording its reasons. It noted, “…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. Many persons in high positions, including present and past holders of constitutional offices have and have had spouses who are foreign nationals.”
Further, the Collegium stated,“…this Court has established the constitutional position that every individual is entitled to maintain their own dignity and individuality, based on sexual orientation. The fact that Mr. Saurabh Kirpal has been open about his orientation is a matter which goes to his credit.”
The Ministry of Law and Justice, in a letter to the Supreme Court Collegium, in April 2021, had stated, “Homosexuality stands decriminalised in India, nonetheless same-sex marriage still remains bereft of recognition either in codified statutory law or uncodified personal law in India.”
A similar stand was taken by the Union Government when itopposed same-sex marriage on an affidavit before the Delhi High Court on the grounds that marriage can only happen between binary genders. All the petitions have beentransferredto the Supreme Court, which is hearing the matter at present.
Further, the letter had stated,“[A] candidate’s ardent involvement and passionate attachment to the cause of gay rights would not rule out the possibility of bias and prejudice.”
The Collegium in clear terms countered these claims and noted, “…In view of the constitutionally recognized 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… His appointment will add value to the Bench of the Delhi High Court and provide inclusion and diversity.”
Reacting to the Collegium’s stand, senior advocateIndira Jaising said, “The Queer community has a right to be considered for being a judge, having a partner who is not a citizen of India is no disqualification for being a judge, the collegium walked the talk.”
Rohin Bhatt, a queer lawyer and bioethicist practising at the Supreme Court tweeted, “I have been a critic of Justice Chandrachud. But with that has happened today, I take it back. Not only he has laid bare the homophobia against [Kirpal] to the world but ushered in a new era of transparency in the Collegium.”
The back-and-forth conversation on Kirpal’s elevation
Kirpal’s recommendation was approved after five years. On April 22, 2017, he agreed to the proposal of the Delhi High Court Collegium to nominate him as a judge and was recommended for appointment as a permanent judge on October 13, 2017.
There were four instances when the Supreme Court Collegium considered the elevation of Kirpal: on September 4, 2018, on January 16, 2019, on April 1, 2019, and on March 2, 2021. But the Collegium deferred its decision because the Union Government was not in favour of this recommendation. Amidst this, Kirpal was designated as asenior advocate in the Delhi High Court in March 2021.
On nepotism accusations
While the reconsideration of Kirpal’s appointment is significant, there have been claims of nepotism because he is the son of former CJI B.N. Kirpal. Aphoto circulated online stated that the former CJI Y.V. Chandrachud — incumbent CJI Dr. Chandrachud’s father — recommended the appointment of B.N. Kirpal to the Bench in 1979, who in turn recommended the elevation of Dr. D.Y. Chandrachud to the Bench in 2000.
It is true that Justice Y.V. Chandrachud was the CJI when Justice B.N Kirpal was elevated asadditional judge of Delhi High Court, but no Collegium existed in 1979. Moreover, Justice Dr. D.Y. Chandrachud was elevated to the post of permanent judge of the Bombay High Court in 2000, whereas Justice B.N. Kirpal was appointed as CJI only in 2002.
Interestingly, both Dr. Chandrachud, head of the Collegium that reiterated Kirpal’s name last week and Justice Khanwilkar, part of the Collegium that had originally recommended Kirpal’s name in 2021, were a part of the constitutional bench in Navtej Singh Johar.
Advocate R. John Sathyan
Sathyan was originallyrecommendedby the Collegium for appointment as a judge of the Madras high court on February 16, 2022. But the Intelligence Bureau (IB), in its report, opposed the appointment and said,“As per open sources, two posts made by him, i.e. sharing of an article published in The Quint, which was critical of the Prime Minister, Narendra Modi; and another post regarding committing of suicide by medical aspirant Anitha, who ended her life in 2017 since she was unable to clear NEET, portraying it as a killing by ‘political betrayal’ and a tag stating ‘shame on you India’ came to notice.”
The Collegium has rejected the adverse comments of the IB and stated that the posts written by him do not “impinge on his suitability, character or integrity“.
The Collegium also pointed out all consultee-judges at the relevant time, namely Sanjay Kishan Kaul, Indira Banerjee, V. Ramasubramaniam and M.M. Sundresh, had found him suitable for elevation.
Moreover, the Collegium, while reiterating its recommendation, clarified: “…he be given precedence in the matter of appointment as judge over certain names separately recommended today by this Collegium for appointment as Judges of the Madras High Court”.
Abhimanyu Balyan, an advocate at the Punjab & Haryana High Court,tweeted in this regard, “Union Govt. objected to the name of R. John Sathyan because he shared an article critical of PM Modi. If Govt member sits on Collegium then it will be run like TV Newsroom.”
Another advocate at the Supreme Court, Shashank Ratnoo,wrote, “From John Sathyan to Saurabh Kirpal some very detailed recommendations and rebuttals (of IB/RAW reports) by the collegium! Proud of the institution I work in… SCI showing spine after a long-long time.”
The hypocrisy angle
On the day when a letter for Sathyan’s reconsideration was issued, the Collegiumrecommendedfive advocates and three judicial officers for appointment as judges and elevation to the Madras High Court respectively. This list includes advocateLekshmana Chandra Victoria Gowri, recommended to be appointed as a judge to the Madras High Court. Gowrihappensto be the National Secretary of theBharatiya Janata Party Mahila Morcha or women’s wing.
This recommended appointment must raise serious questions, especially when the Union Government has opposed the appointments of certain other advocates in the name of alleged political bias.
Advocate Somasekhar Sundaresan
Advocate Sundaresan, specialising in commercial law, was recommended by the Supreme Court Collegium on February 16, 2022, for appointment as a judge of the Bombay High Court. He was first recommended by the Bombay High Court Collegium on October 4, 2021. But the Union sought reconsideration of the same because he“aired his views on social media on several sub-judice matters”.
The Collegium rejected these objections and said,“… the Collegium is of the view that the views on social media attributed to the candidate, do not furnish any foundation to infer that he is biased.”
According to anIndian Express report, the views the Union Government seemed to be referring to are that Sundaresan in an opinion piece for a business newspaper expressed that former CJI U.U. Lalit’s (then a criminal lawyer) proposed appointment as a judge of the Supreme Court was inappropriate. He reasoned that Justice Lalit was a lawyer for Union Home Minister Amit Shah for his alleged involvement in the infamousSohrabbudin fake encounter case in 2010.
While emphasising that all citizens have a right to freedom of speech underArticle 19(1)(a), the Collegium stated,“…the manner in which the candidate 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 important policies, initiatives and directions of the Government’ (as indicated in the objections of Department of Justice) 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.”
Lawyer Atul Menonwrote on Twitter,“Had Somasekhar Sundaresan or R. John Sathyan expressed views on social media in favour of the government, their names would have certainly been accepted by the centre.”
According to the Collegium, the expression of views by a candidate “does not disentitle him from holding a constitutional office” so long as the “person proposed for a judgeship is a person of competence, merit and integrity.”
Not everyone gets a second chance
For Sundaresan, the delay in elevation may not take away his chance at judgeship, but for others like former JusticeAkil Abduhamid Kureshi, retired Chief Justice of Rajasthan High Court, that was unfortunately not the case. Justice Kureshi retired on March 5, 2022, without being elevated to the Supreme Court despite being the second-most senior high court judge at that time.
It is perhaps because he had remanded the then Home Minister of Gujarat, Amit Shah (now Union Home Minister), to the custody of the Central Bureau of Investigation as murder-accused in theSohrabbudin fake encounter case. Because of hisnon-appointment, the Collegium witnessed an impasse that nearly lasted two years as formerJustice Rohinton Fali Nariman insisted on Kureshi’s elevation; this led to no recommendations for appointment to the Supreme Court Bench by the Collegium for those two years.
When the Collegium started functioning post Justice Nariman’s retirement, it recommended nine persons, includingthree women for the first time, for appointment to the Supreme Court Bar. But Justice Kureshi’s name did not find a place. We do not know if Sundaresan will have the same fate as Justice Kureshi.
Justice Kureshi, in his farewell address, said,“Do I have any regrets? None at all. Each decision of mine was based on my legal understanding. I may have been wrong; was proved to be wrong on many occasions but never once have I decided something different from my legal belief. I leave with my pride intact that I made no decision based on its consequences for me.”
Advocates Amitesh Banerjee and Sakya Sen
Banerjee and Sen’s names were recommended by the Calcutta High Court Collegium on December 17, 2018, and approved by the Supreme Court Collegium on July 24, 2019. The Union Government sent the recommendation back on July 23, 2021.
The Collegium reiterated its earlier recommendation in respect of Banerjee on September 1, 2021. Banerjee is the son of a former judge of the Supreme Court, Justice U.C. Banerjee, who headed a Commission to inquire into the fire inSabarmati Express in 2002, in Godhra, Gujarat. Banerjee’s reportfound that the fire, which killed 59 people, was accidental and was not started by a Muslim mob.
In Sen’s case, the IB forwarded “additional inputs” on September 27, 2021, but the Collegium reiterated Banerjee’s name on October 8, 2021. The government again reverted the files on November 25, 2022.
Sen is the son of Justice Shyamal Sen, who headed the Commission on the Saradha Scam.
According to the Collegium’s resolution, “the inputs which have been furnished by the Department of Justice in the file on 25 November 2022 do not contain any fresh material or ground.”
On January 6, a Supreme Court bench headed by Justice Kaul hadremarked that sending back by the government of names reiterated for appointment is a matter of concern.
It should be noted that according to theSecond Judges’ case, 1993, if the Collegium, on reconsideration, reiterates a recommendation, it ought to be accepted by the government.
Recently, the Collegium recommended the name of advocateNagendra Ramachandra Naikas a judge of the Karnataka High Court for the third time. He was earlier recommended in 2019 and then again in 2021. But the Union Government seems to be sitting over this file.
The Collegium, while asking the Union to process Banerjee and Sen’s files expeditiously, stated: “Moreover, after the Supreme Court Collegium reiterated the proposal on 1 September 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.”
How much accountability is too much?
Recently, there were claims that the Law Minister haswritten a letter to the CJI wanting government representation in the Collegium. Rijiju claimed that the content of the letter is inconformity with the observation and directions of the Supreme Court in its NJAC judgment and he just wanted an update on the restructuring of the Memorandum of Procedure (MoP) on the appointment of judges. It was accepted in the NJAC judgment that the MoP needed changes. But Rijiju laterclarified: “How can a govt’s nominee be part of the collegium?”
The role supposedly desired by the executive in the Collegium is not clear. Jaising wrote in theIndian Express that the representation is perhaps sought for the Search-cum-Evaluation Committee for appointments of judges to the Supreme Court and the appointments of chief justices to the high court. But no such committee exists, she remarked.
In an interview with NewsToday, former judge of the Supreme CourtJustice Madan Lokur, in response to the Law Minister’s letter, opined that the Government said that it wanted to draft the MoP and the Supreme Court agreed to it, but the Union did not make any change to it. He said, “…the Government just sent the same 1999 MoP back. They did not do anything. What transparency are they talking about?”
Justice Lokur further said that the Collegium needs reform, but claimed that the Government constantly tries to interfere in the appointments. He pointed a question at the Government and asked, “…tell me, is there any country in the world where the Government says we are not going to appoint a judge for two years or five years?… In my view, the Government is far more opaque than the Collegium.”
We do not know if these resolutions will lead to any drastic change or whether these advocates will secure their chance at judgeship. We also do not know if the Supreme Court Collegium will live up to its newly created expectations, but we can surely say that this moment will go down in the history of this court.