In a statement released on Thursday, the Supreme Court Collegium, led by Chief Justice of India D Y Chandrachud, confirmed its choice to name five advocates as High Court judges.
Notably, in at least three instances, it made both its justifications for repeating and the government’s concerns public: An advocate distributing content critical of Prime Minister Narendra Modi, a candidate’s sexual orientation, and his “foreign-national” spouse; and another person’s social media posts criticising the government.
The five candidates are senior advocate Saurabh Kirpal for the position of judge on the Delhi High Court, advocate Somasekhar Sundaresan for the position of judge on the Bombay High Court, advocate R. John Sathyan for the position of judge on the Madras High Court, and lawyers Sakya Sen and Amitesh Banerjee for the position of judge on the Calcutta High Court.
On November 25 of last year, the government asked that these names be reconsidered. The Collegium also includes Justices Sanjay Kishan Kaul and KM Joseph in addition to the CJI.
The Collegium’s statement on Kirpal, who would be India’s first out gay judge if nominated, is the most thorough.
The Collegium, referring to communication from the RA&W and former Union Law Minister Ravi Shankar Prasad, said that “it appears that there are two objections to the recommendation which was made by the Collegium of this Court on 11 November 2021 approving the name of Shri Saurabh Kirpal namely: (i) the partner of Shri Saurabh Kirpal is a Swiss National, and (ii) he is in an intimate relationship and is open about his sexual orientation.”
“The letter of the Law Minister dated 01 April 2021 states that though ‘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,” the Collegium statement said.
Rejecting these objections, the Collegium said: “As a matter of principle, there can be no objection to the candidature of Shri Saurabh Kirpal on the ground that his partner is a foreign National.”
“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,” the Collegium said.
Regarding the Center’s reservations regarding Kirpal’s sexual orientation, the Collegium stated that “rejecting his candidature on that premise would be obviously opposed to the constitutional standards put forth by the Supreme Court.”
In response to the second argument, it is important to highlight that the Constitution Bench of this Court’s rulings have established the fundamental principle that every person has the right to keep their own sense of dignity and individuality, regardless of their sexual orientation. It is to Mr. Saurabh Kirpal’s credit that he has been honest about his sexual orientation. He hasn’t been covert about his orientation as a possible judgeship contender.
“His appointment will add value to the Bench of the Delhi High Court and provide inclusion and diversity. His conduct and behaviour have been above board. It may have been advisable for the candidate not to speak to the Press in regard to the reasons which may have weighed in the recommendations of the Collegium being sent back for reconsideration. However, this aspect should not be considered as a negative feature, particularly since the name has remained pending for over five years,” the Collegium said.
Nearly three years after the SC Collegium initially considered Kirpal’s candidature in 2018, the SC Collegium first recommended Kirpal on November 11, 2021.
To clarify the intelligence information the collegium had on Kirpal, then-CJI SA Bobde wrote to then-Minister Prasad in February 2021. According to news agency, the government responded in writing and reiterated its concerns on the nationality of Kirpal’s partner.
According to a statement from the Collegium, the government requested that the name of lawyer Somasekhar Sundaresan be reconsidered since “he has voiced his views in the social media on various subjects that are the subject of consideration before the courts.”
On February 16 of last year, the Collegium recommended Sundaresan.
The Collegium emphasised that everyone has the right to freedom of speech and expression, adding that “expressing one’s opinions does not exclude one from holding a constitutional office so long as the person submitted for judgeship is a person of competence, merit, and integrity.”
“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 the 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,” the Collegium statement said.
The statement added that Sundaresan “has specialized 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 Intelligence Bureau’s report on Sathyan was cited in the Collegium statement. It stated: “As per open sources, two posts made by him, i.e. sharing of an article published in “The Quint” that was critical of the Prime Minister, Narendra Modi; and another post regarding the suicide of medical aspirant Anitha, who ended her life in 2017 because she was unable to pass NEET, portraying it as a killing by “political bet
Sathyan and five other individuals had been initially proposed by the SC Collegium on February 16, 2022. On November 25, the administration returned the files on Sathyan and Abdul Hameed even though four people had been selected.
According to the statement, the inputs provided by the Department of Justice in the file on November 25, 2022, “do not contain any new material or ground” about lawyers Amitesh Banerjee and Sakya Sen.
Furthermore, the statement noted, “It was not open to the Department to continuously submit back the same suggestion which has been renewed by the Supreme Court Collegium after duly weighing the objections of the Government.” On September 1, 2021, the Supreme Court Collegium repeated the request.
Banerjee is the son of UC Banerjee, a former judge in the Calcutta High Court. Banerjee and Sen have each received two updates after the Collegium’s initial recommendation on July 24, 2019.
