The Supreme Court collegium’s resolutions this week reiterating names for the High Court and apex court and responding to the Centre’s objections for not clearing these candidates has been welcomed by legal experts.

This is the first time the collegium – consisting of the three most senior Supreme Court judges – has put on record detailed reasons for its recommendations and noted the Centre’s objections for returning names.

These resolutions are the latest development in the tug-of-war between the executive and the judiciary for the past few months regarding appointments to the higher judiciary.

Collegium’s resolutions

Uploaded on the Supreme Court website on Thursday, these resolutions reiterate the names of five lawyers recommended to be appointed judges in the High Courts of Delhi, Bombay, Madras and Calcutta. The Supreme Court asked the Centre to appoint them as judges.

The collegium reiterated the candidature of Saurabh Kirpal, a senior advocate whose elevation was stalled because he is gay. His name was recommended by the Supreme Court in November 2021 and was sent back by the Centre a year later.

The Centre had two objections to his elevation: that he is open about his sexual orientation and that his partner is Swiss.

The collegium said that there have been “present and past holders of constitutional offices” whose partners have been foreign nationals and that every individual is entitled to their own sexual orientation. Further, the collegium said that Kirpal had the “competence, integrity and intellect” to be elevated.

“His appointment will add value to the Bench of the Delhi High Court and provide inclusion and diversity,” the collegium said.

‘Critical of government’

Of the four other lawyers whose names were reiterated by the collegium, two had not been cleared because they had been critical of the government.

Somasekhar Sundaresan, an advocate at the Bombay High Court was recommended in October 2021. His name was reiterated in February. However, in November, the Centre asked the collegium to reconsider his name.

According to the Centre, Sundaresan was a “highly biased opinionated person” who was “selectively critical on the social media on the important policies, initiatives and directions on the government”.

On January 18, the collegium said that his airing views on social media did not mean that “he is biased”. Further, there was no material to show he had links with “any political party with strong ideological leanings”. The collegium said that every individual has the right to freely express their views under the Constitution.

For an advocate at the Madras High Court, R John Sathyan, who was first recommended in February, the Intelligence Bureau flagged that he shared a report on social media from The Quint that criticised Prime Minister Narendra Modi.

The collegium noted that sharing these articles did not hamper Sathyan’s “suitability, character or integrity”. It said that his Intelligence Bureau report showed that “he does not have any overt political leanings” and has a “good personal and professional image” and recommended his name again.

There were two advocates from the Calcutta High Court, Amitesh Banerjee and Sakya Sen, whose names had been recommended in July 2019 and reiterated in 2021 but were returned by the Centre both times.

The collegium noted that there was no “fresh material or ground” to return their names and that the Center cannot “repeatedly send back the same proposal which has been reiterated by the Supreme Court Collegium after duly considering the objections of the government”.

Union Law Minister Kiren Rijiju and Chief Justice DY Chandrachud. Credit: PTI

‘Welcome move’

Legal experts welcomed the Supreme Court collegium’s action.

“This is the first time they [the collegium] have made such detailed comments,” said former Supreme Court judge Justice Madan Lokur. “I think this is very good and is a step towards greater transparency.”

He added that these detailed comments should not be a one-off instance and the collegium should do this for all recommendations.

Senior advocate Dushyant Dave said that the collegium did well by responding to show the government that its objections to these names were held no water. “This is a good beginning,” he said. “At least the country should know what the government is doing and how the judiciary is wanting to maintain its independence.”

These resolutions showed that the “government’s mindset is extremely shallow”, he added. “If modem times, it is appalling if someone is disqualified because they have a [particular] sexual preference or if they are critical of Prime Minister Modi,” Dave said.

Said senior advocate Sanjoy Ghose, “At one level it is good that you have publicly rebuked the government for this [not appointing reiterated names].”

However, he said that the government was clearly in contempt of the law laid down by the court by not appointing these names. “The collegium is an administrative body,” he added. “On the judicial side also, the judiciary should take up contempt proceedings against the government.”

What next?

The Supreme Court is presently hearing a contempt petition on candidates who have not been appointed by the Centre despite their names being reiterated. In this case, the bench has warned the Centre that if they do not appoint names within the timelines that have been prescribed by the court, then it will be forced to pass an order against the government.

The Centre has been in a tussle with the Supreme Court over the procedure for appointing judges. It wants a greater power in making appointments. Earlier this month, the Centre sent a letter to Chief Justice DY Chandrachud asking for a government nominee on the search committee recommending names to the collegium.

“It seems like a pressure tactic,” said former Allahabad High Court Chief Justice Govind Mathur. “The government can pass an amendment or bring a law to change the system. However, they are doing this to put pressure and make the public lose faith in the judiciary.”

Said Ghose, “It is a bargaining tactic.” He suggested that the Centre is intensifying its attack on the collegium so that it is in a better position to negotiate the appointment of judges.

According to one senior advocate, the letter was sent as a response to the contempt proceedings.

Now, after the latest collegium resolutions, it is the Centre’s turn to respond.

“The ball is in the court of the government [now], whether they want to further up the ante or tone down the aggression,” said Ghose.

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