Not Open To Center To Send Back Proposal Reiterated By Collegium- SC Collegium Issues Strongly Worded Statements

The Supreme Court Collegium has issued strongly worded statements reiterating its earlier recommendations to appoint four Advocates as Judges of the Calcutta, Bombay and the Delhi High Courts.

The Statements dated January 18 have been issued by the Collegium comprising Chief Justice Chandrachud, Justice Sanjay Kishan Kaul and Justice K.M. Joseph.

Saurabh Kirpal, Advocate as Judge of the Delhi High Court

The statement says that the proposal has been pending for over five years and that the RAW has raised two objections to the recommendation viz. (i) the partner of Saurabh Kirpal is a Swiss National, and (ii) he is in an intimate relationship and is open about his sexual orientation.

The statement quotes the Law Ministry as having said in a letter, “homosexuality stands de-criminalised in India, nonetheless same-sex marriage still remains bereft of recognition either in codified statutory law or uncodified personal law in India” and that “ardent involvement and passionate attachment to the cause of gay-rights” would not rule out the possibility of bias and prejudice.

On first objection

"As regards the first objection, the two communications of R&AW do not reflect any apprehension in regard to the individual conduct or behaviour of the partner of Shri Saurabh Kirpal having a bearing on national security. 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."

On Second objection

"As regards the second objection, it needs to be noted that 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. 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 recognized 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. Shri Saurabh Kirpal 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 may have been advisable for the candidate not to speak to the Press in regard to the reasons which may have weighed in the recommendations of the Collegium being sent back for reconsideration. However, this aspect should not be considered as a negative feature, particularly since the name has remained pending for over five years. The overwhelmingly positive aspects of the candidature of Shri Saurabh Kirpal must, therefore, weigh in the balance."

Somasekhar Sundaresan, Advocate as Judge of the Bombay High Court

The Statement says that the ground on which reconsideration of the candidature of Sundaresan has been sought is that he has aired his views in the social media on several matters which are the subject matter of consideration before the courts.

Statement says that the views on social media attributed to the candidate do not furnish any foundation to infer that he is biased. "The issues on which opinions have been attributed to the candidate are in the public domain and have been extensively deliberated upon in the print and electronic media. 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 Collegium says.

It also says that all citizens have the right to free speech and expression under Article 19(1)(a) of the Constitution and that the 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.

The Collegium adds that Sundaresan has specialized 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.

Advocates Amitesh Banerjee & Sakya Sen as Judges of the Calcutta High Court

The Collegium says that the inputs which have been furnished by the Department of Justice do not contain any fresh material or ground. "Moreover, after the Supreme Court Collegium reiterated the proposal on 01 September 2021, it was not open to the Department to repeatedly send back the same proposal which has been reiterated by the Supreme Court Collegium after duly considering the objections of the Government", the statement says.

The Collegium does not reveal the objection against the duo by the Center.