Collegium stresses on free speech, stands by elevations Collegium: Cannot deny judgeship due to sexual orientation

NEW DELHI: Standing by its decision to appoint two lawyers as judges in the high courts of Bombay and Madras respectively, the Supreme Court collegium on Thursday stressed on the importance of free speech, saying that “expression of views by a candidate does not disentitle him to hold a constitutional office”.

The collegium, comprising Chief Justice of India Dhananjaya Y Chandrachud and justices Sanjay Kishan Kaul and KM Joseph, moved away from convention by putting out in the public domain its resolutions with detailed reasons, disclosing why the government objected to certain names and the collegium’s response. Earlier, only the decisions were released on the court website.

Notably, the collegium’s departure from the conventional practice comes at a time when the judiciary and the executive are at loggerheads over the judges’ selection mechanism and the division of powers between the two.

The lawyers in question were Somasekhar Sundaresan, who has been picked for elevation to the Bombay high court, and R John Sathyan, who has been selected for the Madras high court.

The collegium also sent back names of advocates Amitesh Banerjee and Sakya Sen for their appointment as judges to the Calcutta high court.

The collegium said that it was not open to the government to send back these names after the collegium’s reiteration in 2021.

The resolution regarding reiteration of the name of Sundaresan revealed that the government wanted the collegium to reconsider his candidature because he aired his views on social media on several matters pending before the courts.

The government, in its communication dated November 25, returned Sundaresan’s name, calling him a “highly biased opinionated person” who is “selectively critical on the social media on the important policies, initiatives and directions of the government”.

Rejecting the objection, the collegium said that the views on social media attributed to Sundaresan do not furnish any foundation to infer that he is biased or has any political leaning, especially when these issues are in the public domain and have been extensively deliberated upon in the print and electronic media.

“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,” said the top court collegium.

In the second case, the collegium pushed for the appointment of Sathyan as a judge of the Madras high court, and the resolution disclosed that the Intelligence Bureau (IB) had flagged his candidature two of his posts on social media.

One of these posts was an article critical of Prime Minister Narendra Modi and the second one pertained to a girl student dying by suicide in 2017 after she was unable to clear NEET.

The government, citing IB’s objections, returned Sathyan’s name for reconsideration.

The collegium, however, resolved to send back his name, pointing out that not only all the consultee judges had a favourable opinion about suitability of the lawyer, IB too reported that he enjoys a good personal and professional image and that nothing adverse has come to notice against his integrity.

NEW DELHI: It would be “manifestly contrary to the constitutional principles” to block the appointment of senior advocate Saurabh Kirpal as a judge in the Delhi high court because of his homosexuality, the Supreme Court collegium told the Union government in its resolution, reiterating Kirpal’s name for the appointment.

As reported first by HT on Thursday, the collegium strongly backed Kirpal’s candidature, brushing aside the objections raised by the government, which on November 25 sent back the lawyer’s name for a reconsideration. The collegium comprises CJI Dhananjaya Y Chandrachud, and justices Sanjay Kishan Kaul and KM Joseph.

The resolution, made public by the collegium on Thursday evening, took head on the concerns expressed by the government regarding Kirpal’s sexuality, asserting that his openness about his orientation is a matter which goes to his credit.

“The decisions of the Constitution bench of this court have established the constitutional position that every individual is entitled to maintain their own dignity and individuality, based on sexual 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,” stated the resolution.

Dismissing the government’s views that Kirpal’s “ardent involvement and passionate attachment to the cause of gay rights” would not rule out the possibility of bias and prejudice, the collegium maintained that

JANUARY 19: HT reported that the collegium stood firm on its decision to appoint senior advocate Saurabh Kirpal as a judge of Delhi high court.

the lawyer possesses competence, integrity, and intellect. “His appointment will add value to the bench of the Delhi high court and provide inclusion and diversity. His conduct and behaviour have been above board,” it said.

Kirpal was one of the leading lawyers in the landmark Navtej Singh Johar case that led to the Supreme Court decriminalising homosexuality in 2018.

The collegium further rejected the government’s apprehensions that since Kirpal’s partner is a Swiss national, it may pose a security threat. “There is no reason to presuppose 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... on the ground that his partner is a foreign national.” It added: “In this backdrop, the collegium resolves to reiterate its recommendation dated 11 November, 2021 for appointment of Shri Saurabh Kirpal... which needs to be processed expeditiously.”

Somasekhar Sundaresan and R John Sathyan