Top court draws a line in the sand

A public note disclosing reasons for judicial picks may intensify the face-off with the Centre, but also usher in welcome transparency

Asnowballing confrontation between two branches of India’s democracy hit a new pitch this week over three names for appointment to the higher judiciary. The collegium, headed by Chief Justice of India DY Chandrachud and also comprising justices SK Kaul and KM Joseph, broke away from recent convention and issued a public note listing reasons for appointing Saurabh Kirpal to the Delhi high court (HC), Somasekhar Sundaresan to the Bombay HC and R John Sathyan to the Madras HC. More significantly, it recorded the government’s reasons for objecting to these names and issued pointed rebuttals to each objection.

In Mr Kirpal’s case, the collegium brushed aside the government’s two-fold concern — about his advocacy of equal rights for same-sex relationships, which the executive said could give rise to bias and prejudice, and about his partner being a Swiss national, which the government said may pose a security threat. The collegium rightly pointed out that the top court had affirmed the constitutional rights of every person, regardless of their sexual orientation, to live a life of dignity, and to deny someone’s candidature based on this ground would be an affront to constitutional principles. Since the sexual orientation of heterosexual people is not assessed as a factor while considering them for high office, there is no reason why a queer person’s sexuality would render them incapable of impartial and critical thinking. The collegium further rejected the government’s apprehensions about Mr Kirpal’s partner, noting that Switzerland is a friendly nation. In the other two cases, the collegium underlined the right to free speech and dismissed the executive’s concern that the two lawyers were biased, based on their social media posts. The collegium said views on social media cannot be a foundation to infer that someone is biased or has any political leaning, especially when these issues are in the public domain.

This is an important moment and must be seen against the backdrop of the tussle between the Centre and the Supreme Court over who gets primacy in the appointment of judges. Over the past few months, the Union government repeatedly criticised the powers of the collegium, leading to speculation that it wanted to undo the changes made in the Second Judges case in 1993, which set up the collegium system. This was done largely through public comments made by the law minister, with even the vice-president on one occasion expressing his disapproval of the basic structure doctrine, sparking serious worries about judicial autonomy and concerns that the government was attempting to gain influence over a process that could subvert the judiciary’s role as a defender against executive and legislative overreach, and the excesses of a majoritarian democracy. The collegium’s decision to make the deliberation public draws a line in the sand, and signals the judiciary’s eroding patience with the stalling of judicial appointments.

At the same time, this newspaper hopes this development paves the way for a new convention of transparency from both sides. The collegium system, though important for judicial independence, has attracted criticism for being opaque and functioning with little diversity or accountability. In allowing the most important stakeholders in the democratic process, the citizens, a look at its institutional processes, thinking and deliberations, the court has taken a welcome step forward.