Thank you, Mr Kiren Rijiju, honourable Minister for Law and Justice for your insistence on the Supreme Court Collegium being transparent in its functioning.
If it hadn’t been for your sustained support for transparency, we would not have known of many things regarding the appointment of judges to constitutional courts.
Consider this, dear reader: The Supreme Court Collegium (the Collegium) had made a serious attempt at transparency a few years ago, but then it backtracked resulting in fingers being pointed at its Masonic secrecy. The honourable minister’s persuasion has prompted the Collegium to be more transparent in its functioning than it has been in the past.
Now, in one fell swoop, Collegium has opened its doors and windows wide open and more importantly those of the government which, in my view, suffers from greater opacity than the Collegium.
Thank you for that, sir.
Here is a brief of the events that transpired in the recent past based on the statements of the Collegium.
Delhi high court
Saurabh Kirpal was recommended for appointment as a judge of the Delhi high court by the High Court Collegium in October 2017.
In its statement, the Collegium has not mentioned that it had deferred consideration of his recommendation on three occasions. Fact: I was a member of the Collegium during the first deferment in 2018. But let’s not go into that because the Collegium eventually approved the recommendation of the High Court Collegium and recommended his appointment to the government on November 11, 2021. Sure, it shouldn’t have taken more than four years to do so.
What did the government do after receiving the recommendation of the Collegium?
From sometime in November 2021, the government did nothing for more than one year. Why? We now know.
The government received two letters from the Research & Analysis Wing (R&AW) of the government on April 11, 2019 and March 18, 2021. Note: Both letters antedate the recommendation of the Collegium in November 2021.
Both letters were either withheld from the Collegium on earlier occasions or were sent when received. If they were withheld, it was absolutely wrong on the part of the government to do so. What was the need to hide them? If the letters were sent to the Collegium, then it obviously took them into consideration when the recommendation of the High Court collegium was approved in November 2021.
Therefore, what was the occasion or reason for once again sending the letters to the Collegium? It appears that the letters were not sent to the Collegium when received on earlier occasions which, if true, was absolutely wrong on the part of the government. Anyway, the government used the two letters to send the file to the Collegium on November 25, 2022 for reconsideration of the recommendation.
What were the facts disclosed by R&AW which prompted the government to return the file to the Collegium? There were two facts:
- The partner of Saurabh Kirpal is a Swiss national, and
- He is in an intimate relationship and is open about his sexual orientation.
Politely put, Saurabh Kirpal is gay and is open about it and his partner is a Swiss national.
It’s not a crime to be gay and it’s not a crime to have a foreign national as a partner, whatever the sexual orientation. In the past, we’ve had an illustrious judge of the Supreme Court whose wife was a foreign national.
Regardless of whether the two letters from R&AW were withheld from the Collegium, on April 1, 2021, the then Union law minister apparently wrote to the Chief Justice of India (CJI) stating that homosexuality stands decriminalised in India, same sex marriage is not recognised in India, and that Saurabh Kirpal’s “ardent involvement and passionate attachment to the cause of gay-rights” would not rule out the possibility of bias and prejudice.
The first two statements are statements of fact and cannot be considered as objections. The third is a subjective opinion based on absolutely nothing. Quite obviously, the objection of the government is his sexual orientation and nothing else.
Note, the government has had nothing to say about his merit, integrity and character. Is his sexual orientation a good enough reason to hold back his appointment?
The Collegium dealt with the research and analysis provided by R&AW and concluded, with cogent reasons, that these facts were not good enough to preclude his appointment as a judge of the Delhi high court. His sexual orientation has nothing to do with his ability to function as an impartial and unbiased judge. QED.
The entire material is now in the public domain, including the facts stated by R&AW and the reasons given by the Collegium for reiterating its recommendation for his appointment. We now know the truth.
Bombay high court
Somasekhar Sunderesan is another outstanding lawyer. His consideration is another interesting story on the appointment process.
He was recommended for appointment by the High Court collegium on October 4, 2021. It is not clear whether, while sending the file to the Collegium, the government recorded its views. If it did not, the question is, why did it not? If it did, then it is quite obvious that the Collegium considered the views while approving and recommending his appointment, on February 16, 2022, as a judge of the Bombay high court.
More than nine months later, the government inexplicably sent back the file to the Collegium for reconsideration.
What was going on in the corridors of power for so many months? And consider what is recorded (which could and should have been recorded earlier, if not done so). The opinion recorded was that he aired his views on social media (when?) on subjects pending consideration before the courts.
Everybody expresses his or her views on matters pending before the courts, isn’t it? Is it that nobody should express any view about Article 370 of the constitution or about the Citizenship (Amendment) Act or about electoral bonds (issues of public interest and importance) even though cases about their legality are pending before the Supreme Court?
Not that Somasekhar Sunderesan specifically did so – the subjects he expressed his views on social media have not been disclosed. The government then goes on to say that he is a “highly biased opinionated person” and “selectively critical on the social media on the important policies, initiatives and directions of the Government”.
Wow, and how dare he?
Nothing has been said about his competence, integrity, merit, skill, emotional stability, firmness, serenity, legal soundness, ability and endurance, matters obliquely adverted to by the government on the file. Consequently, the Collegium reiterated its earlier recommendation.
To put it plainly, an objection has been taken to his appointment because his views do not advance the cause of the government in having a committed judiciary. Once again, transparency has told us the truth.
Calcutta high court
The cases of Amitesh Banerjee and Sakya Sen are equally interesting, though for different reasons.
They were recommended for appointment by the collegium of the Calcutta high court on December 17, 2018. The Collegium approved and recommended their appointment on July 24, 2019.
The government apparently did nothing for two years but ‘sit’ on the file and then referred the file back to the Collegium on July 23, 2021. The reasons for sending back the file for reconsideration have not been disclosed. Be that as it may, the Collegium then reconsidered the case of Amitesh Banerjee and reiterated its recommendation on September 1, 2021. It is not clear why the case of Sakya Sen was not considered on the same date. In any event, on September 27, 2021, the government forwarded additional inputs of the Intelligence Bureau provided on September 24, 2021 to the Collegium. Thereafter, the Collegium considered the additional inputs and reiterated the recommendation for the appointment of Sakya Sen as a judge of the Calcutta high court on October 8, 2021. Both were first reiterations.
Again, the government ‘sat’ over the file for one year and referred both cases back to the Collegium on November 25, 2022, for a third consideration or a second reconsideration.
Very interestingly, the request for a second reconsideration was not based on any fresh inputs or additional inputs or any new material. It seems that the request was made because the government decided it could do so in violation of a Supreme Court judgment and was not obliged to provide any reasons for requesting a second reconsideration. In legal parlance, this is sometimes called arbitrary action.
In its Statement, the Collegium noted that once a case has been reiterated, it is not open to the government to send back the same proposal. The law laid down by the Supreme Court mandates acceptance of the reiterated proposal, otherwise the back-and-forth can continue interminably. Under the circumstances, and in the absence of any additional or fresh material or any other ground, the Collegium reiterated its earlier recommendation.
Once again, thanks for letting us know that the government can act arbitrarily or without reason.
Madras high court
The fourth case of R. John Sathyan is equally peculiar. Earlier, on February 16, 2022, the Collegium approved the proposal for his elevation as a judge of the Madras high court, along with that of five others. Before approving the recommendation, the Collegium took the opinion of four judges of the Supreme Court who earlier were either Chief Justices or judges of the Madras high court and therefore perhaps knew John Sathyan.
Notwithstanding the view of the Chief Justice of India and judges of the Supreme Court, the government did not process the recommendation but sent the file back for reconsideration by the Collegium along with a report provided by the Intelligence Bureau. The report of the Intelligence Bureau makes for interesting reading and needs to be quoted:
“As per open sources, two posts made by him, i.e. sharing of an article published in ‘The Quint’, which was critical of the Prime Minister, Narendra Modi; and another post regarding committing of suicide by medical aspirant Anitha, who ended her life in 2017 since she was unable to clear NEET, portraying it as a killing by ‘political betrayal’ and a tag stating ‘shame of you India’ came to notice.”
The date of the Intelligence Bureau’s report has not been mentioned in the Statement so we do not know whether the report is before 16 February 2022 or after. If it was before February 16, 2022, it is quite clear that it would have been considered by the Collegium when it made the recommendation on that date. But, if it is after February 16, 2022, it is quite clear that the Intelligence Bureau did not do its homework in time.
In any event, notwithstanding the posts made by John Sathyan, the Intelligence Bureau reported that he enjoys a good personal and professional image and that nothing adverse has come to notice regarding his integrity and that he does not have any overt political leanings. It appears from the statement that the Department of Justice had no independent views to offer and that it merely conveyed the report received by it from the Intelligence Bureau.
The Collegium noted that sharing an article appearing in a reputed web portal and a post regarding a suicide in 2017 can hardly impinge on the suitability, character and integrity of John Sathyan.
Accordingly, the Collegium reiterated its recommendation for his appointment as a judge of the Madras high court. But for the insistence on transparency, these facts would not have been made available in the public domain.
The conclusions that one can draw from these recent developments is that the Collegium has decided to be more transparent than it has been in the past, which is very good. The government should also match that level of transparency.
It can also be concluded that the government has been acting arbitrarily and perhaps whimsically in the matter of appointment of judges and has been basing its conclusions on subjective opinions. This is unhealthy. It also appears that the government cares, but not much, for the views of the Collegium – it prefers to do its own thing including sending a file back to the Collegium for reconsideration without any apparent reason.
The big questions now are:
Will the government accept the recommendations of the Collegium which relate to the four more important high courts: Delhi, Bombay, Calcutta and Madras?
Will the government process the recommendations within two days as it has done in the past?
Will it keep the recommendations in abeyance and effectively ‘reject’ them through sheer inaction?
The recent statement of the honourable law minister indicates that the ‘fight’ for perceived supremacy is far from over. Imagine, a reference is made to a statement by a former judge of the Delhi High Court who said that the Constitution has been hijacked by the Supreme Court. In this context, it is said that majority of the people have similar “sane views”.
Excuse me, but is it being suggested that the judges in the Collegium are not sane? What is the implication of this observation? For the sake of an independent judiciary, one can only hope and pray for the best.
Justice Madan B. Lokur is a former judge of the Supreme Court of India.