Article by Jannani M on Verfassungsblog
In an unprecedented move, the collegium of the Supreme Court of India on the 17th and 18th of January, 2023, passed resolutions calling out the executive’s delay in the judicial appointments of five advocates – Mr. Saurabh Kirpal, Mr. Somasekhar Sundaresan, Mr. John Satyan, Mr. Amitesh Banerjee and Mr. Sakya Sen – by publicly countering the government’s objections against their appointment. In this piece, I discuss how the Supreme Court collegium has confronted the discriminatory treatment of persons who openly identify as a part of the LGBTQIA+ community in the process of judicial appointments by standing up to the executive’s bullying. The piece also looks into how the collegium has confronted the union government’s attempt to suppress dissent among advocates and why these resolutions are highly consequential.
What is the Supreme Court Collegium?
In India, the Supreme Court collegium is primarily in charge of appointments or transfer of judges in the High courts and the Supreme Court. The collegium consists of the Chief Justice of India and the four most-senior judges of the Supreme Court of India. This collegium recommends names of persons qualified to be judges to the Central Government and the latter may accept such recommendation or raise objections and request clarifications from the collegium. According to the Memorandum of procedure of appointment of High Court Judges, in case any of the recommendations are sent back with objections, the Chief Justice of India has to review the recommendation and reasons mentioned by the Union. It is important to note that the Central Government is bound to accept the recommendations upon reiteration by the Supreme Court.
The primacy of the Supreme Court collegium though is not expressly rooted in constitutional provisions but has been developed over time by various landmark judicial pronouncements. As previously highlighted in this blog by Medha Srivastava, the collegium does suffer from flaws which includes the lack of transparency in its decision-making process. Despite these limitations, it must be noted that several senior advocates have endorsed this system as one that is essential in safeguarding the independence of the judiciary from the executive.
Discrimination Based on Sexual Orientation
Five years ago, India was at the cusp of witnessing history as Mr. Saurabh Kirpal’s name was recommended by the collegium for appointment to the bench. His appointment would make him the first “openly gay” judge in the nation. However, the Central Government did not accept the recommendation for years and due to the opaque nature of the process the public was unaware of objections to his appointment. This prompted the collegium of the Supreme Court to put on public record both the objections raised by the executive against Mr. Kirpal’s appointment and its rebuttal against it, in a recent resolution.
- His partner is a swiss national (a citizen of a foreign country) and thus could pose a national security concern.
- He is open about his sexual orientation, passionately advocates for the “cause of gay-rights” and is in an intimate relationship. The government stated that this is indicative of Mr. Kirpal’s “bias”.
The collegium, while rebutting the first objection stated that the partner was a citizen of a country which was not categorized as an ‘enemy’ country and thereby the individual conduct of Mr. Kirpal’s partner would not compromise national security. It points out that the use of national security as an objection to Mr. Kirpal’s appointment is inherently aimed at discriminating against him on the basis of his sexual orientation considering that there are some persons in top leadership positions in the country with spouses who are foreign nationals.
Addressing the second objection, the collegium openly declared that not elevating a candidate on the grounds of his advocacy for rights or his sexual orientation would be “manifestly contrary to the principles laid down by the Supreme Court”. It goes a step ahead and even states that the advocate’s openness about his sexual orientation “goes to his credit” and his appointment to the bench would add to the diversity of the high court and bring about inclusion. This effectively countered the narrative of the Central Government which claimed that his involvement with the LGBTQIA+ movement in India is indicative of his “bias and prejudice”. The collegium also lauded his overall merit and highlighted the value addition that his experience would bring to the bench.
Thereby, in responding to the two objections, the Supreme Court has torn down the facade of the seemingly neutral “national security” concerns or accusations of “bias” and has effectively gone to considerable length to implement the judgment in Navtej Johar v. Union of India in judicial appointments which acknowledged that no person shall be subjected to direct or indirect discrimination against irrespective of their sexual orientation.
Protecting the Right to Dissent
Regarding the appointment of two advocates, Somasekhar Sundaresan and John Satyan, the collegium’s recommendation was objected on account of their criticism against the government. Mr. Sundaresan was accused by the Department of Justice for being a “highly biased opinionated biased person” for his “selective” criticism against the government’s policies. The appointment of Mr. Sathyan on the other hand was objected on the basis that he had shared a news article that was critical of the prime minister.
It is important to note that, prior to the elevation as judge of the Supreme Court, one of the sitting judges had praised the prime minister as a “hero”. Some former members of the judiciary were also elevated despite apprehensions regarding their political views. Thereby, holding a political opinion prior to elevation has in the past not necessarily stopped persons from being appointed as judges of the Supreme Court or the High Courts.
In effect, the objections raised against Mr. Sundaresan and Mr. Sathyan in the respective Intelligence Bureau reports have the effect of curbing dissent against the government from members of the bar who aspire to be a part of the bench. The Supreme Court collegium in its recent resolution responding to the objections rightly points out that such a move by the Department of Justice compromises the right to freedom of speech and expression guaranteed under article 19(1)(a) of the Constitution of India. It also states that voicing such opinions in no way compromises the suitability and the integrity of the person who is to be appointed as a judge. By doing so, it resists the attempt of the Central Government in creating a chilling effect on free speech by protecting the right to dissent which the head of the collegium, Justice Chandrachud had earlier referred to as the “safety valve of democracy”.
On the 24th of January, 2023, the law minister flagged national security concerns over the extracts of the Intelligence Bureau report being referred to by the Supreme Court collegium in its resolutions (which is publicly accessible). However, it may be pertinent to note that the Supreme Court in Manohar Lal Sharma v. Union of India, has categorically held that the state cannot receive a “free pass” to justify its actions by using national security as a shield.
By virtue of the landmark judgment of the Supreme Court in the Second Judges Case, the Central Government is bound to approve the appointment of the persons whose name has been reiterated by the Supreme Court collegium. The reiteration comes at a time when the majoritarian union government has been attempting to undermine the independence of the judiciary by trying to create inroads into the process of appointing judges and de–legitimizing well–recognized constitutional safeguards developed overtime by judicial precedents to protect citizens’ rights against the state’s encroachment into fundamental rights and civil liberties. It sends a strong message that this collegium and especially the Chief Justice are unafraid to pick the right battles to ensure that equality of citizens, freedom of speech and expression and the autonomy of the judiciary are guarded.