Opinion SC Collegium’s move to go public on government’s objections to its nominees is welcome but selective

Sunlight is the best disinfectant especially when it streams into black boxes closed for long. The Supreme Court Collegium’s decision to reiterate its recommendation on the appointment of five advocates as high court judges, and its going public with the reasons for both its reiteration and the government’s objections on Thursday is, therefore, an important moment. The process for appointments and transfers of judges of the Supreme Court and high courts is one of the system’s dark areas. More transparency, more public reasoning in this process is much needed. It is also to be hoped that the light of reason will illuminate the way for the appointment of India’s first openly gay judge. On the name of Saurabh Kirpal, first recommended by the SC Collegium on November 11, 2021, the Collegium has refuted the government’s objections regarding his sexual orientation by saying: “… 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.” And: “His appointment will add value to the Bench of the Delhi High Court and provide inclusion and diversity”. That is India’s apex court hearteningly moving the needle on fundamental human rights and freedoms, including the liberty to make sexual choices. And yet, that cannot be the end of this particular story.

The Collegium’s disclosure comes when the exchange between the government and Court has seemed increasingly testy. Even though the Supreme Court has been seen to be much too generous in giving the Executive the benefit of the doubt in crucial cases, a confrontation of sorts has been building between the two on the matter of judicial appointments. Statements by Union Law Minister Kiren Rijiju, reinforced by Vice President Jagdeep Dhankhar’s interventions questioning the doctrine of basic structure, have bolstered the impression that the government wishes to undermine judicial primacy in appointments. In that context, the Collegium’s decision on Thursday to go public is a push back. An unelected institution speaking back to the elected institution is valuable in its own right in a system of checks and balances but the court would be doing itself a great disservice if it were to let that be — or be seen to be — its only reason.

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It would be unfortunate if the court’s move towards greater openness remains merely an opportune counterstrike. It must become a part of its institutional process. For it to be so, the SC must not stop at the disclosure of its reasons for a few names out of many. It must make public its recommendations and its “reasoned response” to government objections on all names — it had put in place such a process of transparency in 2017, only to discontinue it in 2019. It must say, also, why it did not reiterate some of the names the government rejected, and why it changed its own mind on some of the names that it rejected and the government sent back for its “positive reconsideration”. In other words, even as Thursday’s move to go public is welcome, it is evidently selective. The work of completing it, and imbuing it with the sheen of fairness, remains to be done by the court.