The Supreme Court Collegium recommended senior advocate Saurabh Kirpal’s appointment as a Judge of the Delhi High Court in November 2021. The Government’s response to a query, under the RTI Act, to throw light on the delay in appointing him so far, is revealing, even as Thursday’s notifications appointing fresh Judges to various High Courts show Kirpal continues to miss the bus, because of his sexual orientation.
THE Department of Justice, Union Ministry of Law and Justice, has disclosed, in response to The Leaflet’s application under the Right to Information [RTI] Act, the current status of the Supreme Court Collegium’s recommendation to appoint senior advocate Saurabh Kirpal as a Judge of the Delhi High Court. Its reply suggests that the inordinate delay in appointing Kirpal to the Delhi High Court was perhaps due to “intelligence” inputs, which cannot be shared with the public because of the secrecy surrounding such information. However, by merely sitting on the Collegium’s recommendation to appoint Kirpal for the past four and a half months, the Centre may be guilty of contempt of court.
In response to The Leaflet‘s application under the RTI Act seeking the current status of the Collegium’s recommendation to appoint Kirpal as a Delhi High Court Judge, the Appellate Authority under the Union Ministry of Law and Justice has informed that “the files relating to the appointment of judges have inputs from field security agency which attracts Official Secrets Act, 1923 and fall under the purview of Section 8 of the RTI Act”. The term “field security agency” used by the Appellate Authority may well be a euphemism for the Intelligence Bureau [IB], which has a previous history of stopping similar recommendation from the Collegium earlier.
Section 8(1) of the RTI Act deals with ten specific exemptions from disclosure of information. None of these exemptions mentions the appointment of judges. Section 8(2) of the Act says notwithstanding anything in the Official Secrets Act, nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests.
Government’s long track record of spurning Kirpal’s appointment
On November 11 last year, the Supreme Court Collegium recommended Kirpal’s appointment for the fourth time, after the Government has spurned it on three different occasions. Earlier, the Collegium deferred its decision to elevate him first on September 4, 2018, then on January 16, 2019, then again on April 1, 2019, and lastly on March 2 in 2021. The Delhi High Court Collegium had recommended Kirpal for appointment as a permanent judge of the High Court in October 2017, and since then it had been pending with the Supreme Court’s Collegium until November 11 last year, when the Supreme Court finally decided to recommend his name.
If the Government claims to possess no information, it means that it has neither sent it back to the Collegium for its reconsideration, nor submitted it to the President for confirmation of Kirpal’s appointment as the Judge.
The reply from the Ministry means that the Government has received the recommendation of the Collegium, subsequent to its publication on the Supreme Court’s website on November 11 last year. However, the Government claimed to have no information on whether it has sent it back to the Collegium for reconsideration, or submitted to the President, for his assent, and confirmation of appointment. If the Government claims to possess no information, it means that it has neither sent it back to the Collegium for its reconsideration, nor submitted it to the President for confirmation of Kirpal’s appointment as the Judge. In other words, the Government is simply sitting on the Collegium’s recommendation.
Sitting on the Collegium’s recommendation, without sending it back for reconsideration by the Collegium, would mean exercise of pocket veto by the Government, a situation not envisaged by the Supreme Court’s judgments in the Second and Third Judges cases.
On November 11, 2021, the Supreme Court Collegium took a historic decision to recommend the name of Kirpal, who identifies himself as gay, for judgeship to the Delhi High Court.
The Leaflet‘s RTI application sought information regarding “dates” on which the Union Government returned the name of Kirpal to the Collegium for reconsideration, the date on which the said recommendation was put up before the Union Minister of Law and Justice, the Prime Minister and the President of India, and the present status of the recommendation. The Central Public Information Officer [CPIO] of the Department of Justice informed on February 17 that “File of Name-wise list of recommendee judges includes papers marked as ‘SECRET’ in nature, therefore, the same cannot be provided under the provisions of Official Secrets Act, 1923″.
On the first appeal, the Appellate Authority on March 22 informed that “no information is available with this department”. The response was in respect to the “dates” on which the Union Government returned the name of Kirpal to the Collegium, and the date on which recommendation was put up before the Union Minister of Law and Justice, the Prime Minister and the President of India. “No information is available” would naturally imply that Kirpal’s name has not been returned to the Collegium. Had his name been returned to the Collegium, the information, that is, the date, would have been generated on the files of the department of justice.
Response to The Leaflet’s RTI application violates provisions of RTI Act
With regard to information, namely the present status of the Collegium’s recommendation, the Appellate Authority informed that as the same has inputs from field security agency, it couldn’t be shared. In doing so, the Appellate Authority totally ignored Section 22 of the RTI Act, which has an overriding effect over the Official Secrets Act. Section 22 begins with a non-obstante clause overriding anything inconsistent therewith contained in the Official Secrets Act and any other law for the time being in force. To put it simply, section 22 makes the Official Secrets Act inapplicable while dealing with an RTI application.
Besides, the Appellate Authority offered no justification to invoke section 8 of the RTI Act. This Section provides for grounds on which information can be denied by the public authority under the RTI Act. Among other grounds, it includes information which can cause “unwarranted invasion” into the privacy of an individual, information received in a fiduciary relationship, and information, the disclosure of which would prejudicially affect the sovereignty and integrity of India. The Appellate Authority did not specify under which clause of Section 8 it withheld the information.
As per the law laid down by the Supreme Court in the Second and Third Judges cases, if the Union Government has any reservation with regard to the recommendation made by the Collegium, it can seek reconsideration of the same. If the Collegium, on reconsideration, decides to reiterate the recommendation, the government has no choice but to give effect to the recommendation.
There is a series of judgments by the Central Information Commission [CIC] and the High Courts, which have held that the CPIO has to justify with reasons the invocation of any exemption clause to withhold any information sought under the RTI Act. For instance, in Rakesh Kumar Gupta vs. CIC(2021), the Delhi High Court held that the PIO/CPIO has to apply their mind, analyse the material, and then direct disclosure or give reasons for non-disclosure.
Is the government in contempt of court?
As per the law laid down by the Supreme Court in the Second and Third Judges cases, if the union government has any reservation with regard to the recommendation made by the Collegium, it can seek reconsideration of the same. If the Collegium, on reconsideration, decides to reiterate the recommendation, the government has no choice but to give effect to the recommendation.
On April 20 last year, the Supreme Court, in M/s. PLR Projects Pvt. Ltd vs. Mahanadi Coalfields Ltd. & Ors, said that the union government should forward the file/recommendations to the Supreme Court within eight to 12 weeks from the date of receipt of views from the state government and the report/input from the IB, and if the Supreme Court Collegium reiterates the recommendation(s), such appointment should be processed and appointment should be made within three to four weeks. Kirpal’s name has been lying with the union government for over 12 weeks. Therefore, there is considerable force in the argument that the Centre is prima facie guilty of contempt of the Supreme Court’s judgment in this case.
Government continues to use pocket veto to selectively withhold recommended appointments
Last month, the Supreme Court Collegium recommended the names of six judicial officers for elevation to the Delhi High Court. The union government, in less than a month, notified the appointment of four names out of the six. Here also, it withheld the names of two judicial officers, namely, Poonam A. Bamba and Swarana Kanta Sharma. Their appointments were notified only earlier today.
In the Supreme Court’s statement, Bamba’s name was at the top, while that of S.K. Sharma was listed fifth among the six judicial officers recommended by the Collegium. Now, with the delay in notifying the two names, both Bamba and S.K. Sharma lost their seniority inter-se in a group of six judicial officers.
Not only this, the Collegium had, on November 11 last year, reiterated the names of four advocates, namely Tara Vitasta Ganju, Anish Dayal, Amit Sharma, and Mini Pushkarna for appointments as the Delhi High Court judges. The union government has not acted on the recommendations yet. Their names were initially recommended for elevation on August 17, 2020 along with advocates Jasmeet Singh and Amit Bansal, who were appointed as Delhi High Court judges on February 24 last year. The selective segregation of the names has a direct bearing on the seniority of those recommended.
Since November 11 last year, the day when Collegium recommended the name of Kirpal, and also separately reiterated names of four advocates to the Delhi High Court, the union government has appointed four new judges to the High Court, ignoring the names of those who were recommended much before the newly appointed four persons. Even if Kirpal and those whose names had been reiterated by the Collegium are approved now, they would lose their seniority against the newly appointed six judges.
On March 25, 2019, the Collegium recommended the names of three advocates for their elevation as the judges of the Kerala High Court. They were: Conrad Stansilaus Dias, Mohammed Nias C.P. and Paul K.K. The government notified the appointment of Dias and Nias on November 13, 2019, and August 11, 2021, respectively. However, it continues to hold back the name of Paul till now, even though the Collegium reiterated his name on March 2, 2021.
Bangalore based-senior advocate Dr Aditya Sondhi chose to withdraw his consent for appointment as Karnataka High Court judge earlier this year after the union government did not approve his name for a year altogether. His name was recommended by the Collegium initially on February 4 last year along with the names of two judicial officers. Both the judicial officers were appointed on March 25, 2021, while the Union Government segregated the name of Sondhi from the file.
In September 2021, the Collegium reiterated the name of Sondhi. Ideally, his name ought to have been cleared by the union government within three to four weeks in view of the decision in M/s. PLR Projects Pvt. Ltd vs. Mahanadi Coalfields Ltd. & Ors. However, the government continued to exercise its pocket veto.
There are more blatant instances that exist to show how the union government has been sitting over the recommendations of the Collegium for years. Four advocates namely Jaytosh Majumdar, Amitesh Banerjee, Raja Basu Chowdhury and Lapita Banerji were initially recommended for the judgeship to the Calcutta High Court on July 24, 2019. Their names were reiterated by the Collegium on September 1, 2019. Till now, their names have not been approved by the union government. Advocate Sakya Sen was also recommended by the Collegium on July 24, 2019, and reiterated on October 8, 2021. The union government continues to sit over her name as well.
Advocates Moksha Kazmi (Khajuria) and Rahul Bharti were recommended by the Supreme Court Collegium for appointment as Jammu and Kashmir High Court judges on October 15, 2019, and March 2, 2021, respectively. Kazmi’s name was recommended along with advocate Rajnesh Oswal, whose appointment was notified by the government on January 29, 2020 while Kazmi’s name was sent back to the Collegium for reconsideration. The names of Kazmi and Bharti were reiterated by the Collegium on September 1, 2021. Their appointments were notified by the government earlier today.
Judicial officers Umesh Chandra Sharma and Syed Waiz Mian were recommended by the Collegium for elevation to the Allahabad High Court on February 4 last year. Their names were reiterated by the Collegium on August 24 last year along with another judicial officer, Om Prakash Tripathi. The latter’s appointment was notified by the government on October 14 last year. On Thursday, the Centre notified the appointment of Sharma, but the appointment of Mian is yet to be notified.
The pattern with which the Union Government has been segregating the names, and also sitting over the recommendations of the Collegium for a considerable period of time, not only erodes the primacy of the Collegium but also subverts the whole premise on which the NJAC came to be struck down by the Constitution Bench.
Advocate Nagendra Ramachandra Naik was recommended for elevation to the Karnataka High Court on October 3, 2019. His name was first reiterated by the Collegium on March 3 last year, and again on September 1 last year. Once the name of a recommendee has been reiterated by the Collegium, it is binding on the Centre, which has no option but to notify the appointment. But the Centre chose to return the recommendation on Naik for reconsideration by the Collegium.
On Tuesday, the union Government notified the appointments of ten judges to the Telangana High Court. The Collegium, last month, had recommended the names of seven advocates and five judicial officers for elevation to the high court. Here also, the government withheld the names of two advocates, namely Chada Vijaya Bhaskar Reddy and Mirza Safiulla Baig.
With the Central Government continuing to segregate the names recommended by the Collegium, and to pocket veto some of its nominees, the latter’s primacy stands considerably eroded. It also subverts the whole premise on which the National Judicial Appointments Commission [NJAC] was struck down by the Supreme Court in 2015. If in the NJAC case, the Supreme Court made its primacy non-negotiable, post the NJAC judgment, the passive Collegium continues to tolerate the blatant interference of the Executive in the appointment of judges. It needs to assert its primacy to ensure that the Government is restrained from tinkering with its recommendations because it affects the inter-se seniority of the recommendee.
This has a direct bearing on the length of their tenure as judges. The All India seniority of the High Court Judges, determined in terms of the dates of their assuming charge as Judges, is a relevant consideration for their appointment as Supreme Court judges.