New Delhi, Jan 19.
Amidst a standoff with the government over the collegium system of appointing judges to constitutional courts, the Supreme Court has reiterated several names for appointment as High Court judges, names which were earlier rejected by the government on grounds that they had voiced their opinion on social media or critiqued government policy.
HOLDING ONESELF AS GAY IS NOT A DISQUALIFICATION
Nor can openly holding oneself out as gay count as a disqualification, a collegium headed by Chief Justice of India D.Y. Chandrachud said in collegium resolutions uploaded on the website of the Supreme Court. These resolutions frowned upon the Law Ministry for “repeatedly” rejecting names recommended by the collegium for appointment as High court judges.
“… after the Supreme Court Collegium reiterated the proposal on 01 September 2021, it was not open to the (Law) 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,” one of the resolutions, which recommended appointment of Amitesh Banerjee, and Sakya Sen, as Calcutta High court judges said.
Their names were recommended by the Calcutta High Court Collegium on Dec 17, 2018. The Supreme Court Collegium approved the proposal on 24 July 2019. After the Department of Justice referred back their names on 23 July 2021, the top court collegium reiterated its earlier recommendation in respect of Amitesh Banerjee on 01 September 2021.
NO FRESH MATERIAL AGAINST NAMES
On 27 September 2021, the Justice Department forwarded additional inputs of the IB dated 24 September 2021 regarding Sen. The Supreme Court Collegium reiterated its earlier recommendation on 08 October 2021 for Sen’s elevation. The Justice Department has referred back the file on 25 November 2022, but the inputs do not contain any fresh material or ground, the collegium observed, sending the names off to the government a second time.
Under a convention, the government is expected to send back names only once for reconsideration and clear it if it came back from the collegium a second time. However, the central government, emboldened by its majority, has refused to abide by the convention, setting the stage for confrontation with the judiciary.
The government has also sought a say over the process of appointing judges to the constitutional courts, by raking up the issue of revising the memorandum of procedure again. It has sought representation for the Law Minister in any selection process, a clause that the court had struck down in the NJAC ruling.
The court also rejected the government’s objections to the appointment of advocate Saurabh Kripal as a Delhi High Court judge. The government had objected to the fact that Kirpal’s partner was a Swiss national, and that he was open about his sexual orientation.
“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.
“In view of the constitutionally-recognized rights which the candidate espouses, it would be manifestly contrary to constitutional principles laid down… to reject his candidature on that ground. Saurabh Kirpal possesses competence, integrity and intellect, the collegium said.
His appointment will add value to the High Court and provide inclusion and diversity. His conduct and behaviour have been above board. It may have been advisable for him to speak to the press regarding the reasons which may have weighed in the collegium recommendation 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 top court collegium said.
SHARING SOCIAL MEDIA POSTS CRITIQUING GOVT WON”T IMPINGE ON CHARACTER, INTEGRITY
The collegium unanimously reiterated an earlier recommendation for elevation of R. John Sathyan, advocate as a Judge in the Madras High Court.
The IB had advised against his appointment on the ground that he had shared two posts — one newspaper article critical of Prime Minister, Narendra Modi; and another post, regarding suicide by a medical aspirant Anitha (who ended her life in 2017 after she was unable to clear NEET), with personal comments that it was a ‘political betrayal’ and ‘shame of you India’.
“The IB has reported that he enjoys a good personal and professional image and that nothing adverse has come to notice against his integrity. Sathyan belongs to the Christian community. The IB report notes that he does not have any overt political leanings.
In this backdrop, the adverse comments of the IB regarding his posts made by him will not impinge on his suitability, character or integrity, the collegium said.
CANDIDATES ENJOY FREE SPEECH AS CITIZENS TOO
The collegium also reiterated the appointment of Somasekhar Sundaresan, advocate as Judge of the Bombay High Court. It had earlier recommended his name for appointment as a judge on 25 November, 2022, but the government has sought reconsideration of the recommendation.
The ground on which reconsideration was sought is that “he has aired his views in the social media on several matters which are the subject matter of consideration before the courts.”
The collegium observed that “views on social media attributed to the candidate, do not furnish any foundation to infer that he is biased. The issues on which opinions have been attributed to the candidate are in the public domain and have been extensively deliberated upon in the print and electronic media.”
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” 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, the collegium said. 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.
Somasekhar 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, it said.
