Independent Views, Gender Orientation must not affect candidacy for judgeship: SC

Making public the union government's objections to recent recommendations by the Supreme Court (SC) Collegium, the latter has reiterated its earlier choices and recommended the elevation of 17 advocates and three judicial officers as judges of the high courts of Karnataka, Allahabad and Madras.

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Image: The Leaflet

At a crucial meeting of the Collegium held on January 17 the apex court has reiterated the selection of five names and significantly recorded that the Centre can’t repeatedly send back proposals. Thereby, the Collegium has now recommended the elevation of 17 advocates and three judicial officers as judges of the high courts of Karnataka, Allahabad and Madras. The five names of advocates that have been sent back by the SC collegium for elevation as HC judges are Saurab Kirpal, son of former CJI BN Kirpal, Amit Banerjee, Sakya Sen, Somasekhar Sundareshanand R John Sathyan. 

The Collegium consisting of Chief Justice of India DY Chandrachud, Justice Sanjay Kishan Kaul and Justice KM Joseph held.

“All citizens have the right to free speech and expression under Article 19(1)(a) of the Constitution. 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.” 

With this decision significant developments have taken place. In recommending, again, it’s last year’s recommendation to the Centre to appoint Advocate Somasekhar Sundaresan as Judge of the Bombay High Court the Supreme Court has held that his views on social media cannot be used to infer he’s highly biased opinionated person.

Background: The Collegium of Bombay High Court recommended the name of Advocate Somasekhar Sundaresan on  October 4, 2021. On February 16, 2022, the Supreme Court Collegium recommended the name of Somasekhar Sundaresan for appointment as a Judge of the Bombay High Court. On 25 November, 2022, the Government has sought reconsideration of the said recommendation.

Reportedly, the Centre’s objection was that he has aired his views in the social media on several matters which are the subject matter of consideration before the courts. According to media reports, reiterating Advocate Somasekhar Sundaresan’s name the Collegium said,

“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 remarks added that Advocate Sundaresan has specialised 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 Department of Justice has adverted to paragraph 175 of the Second Judges Case [(1993) 4 SCC 441] to the effect that the candidate to be selected must possess high integrity, honesty, skill, high order of emotional stability, firmness, serenity, legal soundness, ability and endurance. The candidate fulfils these qualities.”

“The Collegium, therefore, resolves to reiterate its recommendation dated February 16, 2022 for appointment of Shri Somasekhar Sundaresan, Advocate, as Judge of the Bombay High Court.”

In addition, the Supreme Court Collegium has reiterated its recommendation for elevation of Advocate R. John Sathyan as a Madras High Court Judge, after Centre returned the file citing an online article critical of Prime Minister Narendra Modi that was shared by Sathyan.

The Collegium comprising CJI DY Chandrachud, Justices SK Kaul and KM Joseph has further said that all the consultee-Judges at the relevant time, when the recommendation was first made, had found him suitable for elevation and that nothing adverse has come to notice against his integrity. Reportedly, Sathyan had also shared a post he had shared a news article which was critical of PM Narendra Modi which was objected to by the union of India. His file was also returned since he had shared a post regarding an alleged suicide of a medical aspirant in 2017.regarding a medical aspirant committing suicide in 2017, which contained tags such as tag ‘political betrayal’, ‘shame of you India’.

The proposal to elevate him was made in February last year. The IB report notes that he does not have any overt political leanings. In this backdrop, the Collegium said,

adverse comments of the IB extracted above in respect of posts made by him i.e. sharing an article published in ‘The Quint’ and another post regarding committing of suicide by a medical aspirant candidate in 2017 will not impinge on the suitability, character or integrity of Shri Sathyan. The Collegium is of the considered opinion that Shri R. John Sathyan is fit and suitable for being appointed as a Judge of the Madras High Court.

The Collegium therefore reiterated its earlier proposal and recommended that he be given precedence in the matter of appointment as Judge over certain names separately recommended today for appointment as Judges of the Madras High Court.

Victory for Gay Rights, Diversity

Pushing forward with a historic move towards diversity in gender orientation, the SC Collegium has yet again recommended the name of Advocate Saurabh Kirpal for elevation as a judge of the Delhi High Court (HC). Kirpal’s name was recommended unanimously by the Collegium of the Delhi HC in 2017 and has been pending for over five years. Kirpal’s elevation to the bench is being objected to by the union government due to the Swiss nationality of his partner as well as his intimate relationship and openness about his sexual orientation. 

Rejecting the centre’s objection to his sexuality, the SC collegium in its resolution has said, “The fact that Mr 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 recognised 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.”

The resolution further says that he possesses competence, integrity and intellect, and his appointment would add value to the Bench of the Delhi HC, and provide inclusion and diversity.

On the issue of the union government’s objection to his partner’s nationality, the resolution says, “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. Hence, 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.”

While reiterating the names of advocates Amit Banerjee and Sakya Sen, whose names were first approved by SC collegium in 2019 for elevation as Calcutta HC judge but were sent back, the Collegium on Wednesday said, “It was not open to the Department to repeatedly send back the same proposal which has been reiterated by SC Collegium after duly considering the objections of the Government.”

Interestingly, advocate Banerjee is the son of former apex court judge Justice U C Banerjee, who headed a commission that in 2006 ruled out conspiracy angle in the 2002 Sabarmati Express fire tragedy at Godhra that killed 58 ‘kar sevaks’. The Godhra incident had triggered widespread communal riots in Gujarat.

Advocate Sen is the son of Justice Shyamal Sen, who was elevated as a permanent judge of the Calcutta High Court in February 1986 and later became the chief justice of the Allahabad High Court. Justice Sen also served as the Governor of West Bengal from May 1999 to December 1999. Justice (retd) Sen had headed an inquiry commission which probed the multi-crore Saradha Group ponzi scam.

The Collegium in its remarks made public, also stated that views on social media attributed to the candidate, do not furnish any foundation to infer that he is biased.

The collegium also recommended for giving precedence to him in the matter of appointment over three other names (Judicial officers Periyasamy Vadamalai, Ramachandran Kalaimathi and K. Govindarajan Thilakavadi) which the collegium further recommended for elevation as Madras HC judges. 

(Based on reports by New Indian Express and LiveLaw)


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