Supreme Court reveals Govt objections: ‘gay… posts critical of PM Modi’

The five candidates: senior advocate Saurabh Kirpal for appointment as judge of the Delhi High Court; advocate Somasekhar Sundaresan as judge of the Bombay High Court; advocate R John Sathyan for the Madras High Court; advocates Sakya Sen and Amitesh Banerjee as judges of the Calcutta High Court.

The government had sought reconsideration of these names on November 25 last year. Apart from the CJI, the Collegium also consists of Justices Sanjay Kishan Kaul and KM Joseph.

The most detailed Collegium statement is in the case of Kirpal, who if appointed, could be India’s first openly gay judge.

The Collegium, referring to communication from the Research & Analysis Wing and former Union Law Minister Ravi Shankar Prasad, said that “it appears that there are two objections to the recommendation which was made by the Collegium of this Court on 11 November 2021 approving the name of Shri Saurabh Kirpal namely: (i) the partner of Shri Saurabh Kirpal is a Swiss National, and (ii) he is in an intimate relationship and is open about his sexual orientation.”

“The letter of the Law Minister dated 01 April 2021 states that though ‘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.’ Moreover, it has been stated that the candidate’s ‘ardent involvement and passionate attachment to the cause of gay-rights’ would not rule out the possibility of bias and prejudice,” the Collegium statement said.

Rejecting these objections, the Collegium said: “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.”

“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,” the Collegium said.

On the Centre’s concerns about Kirpal’s sexual orientation, the Collegium said that “it would be manifestly contrary to the constitutional principles laid down by the Supreme Court to reject his candidature on that ground.”

“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.

“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 Collegium said.

Kirpal was first recommended by the SC Collegium on November 11. 2021, nearly three years after it first considered his candidature in 2018.

In February 2021, then CJI SA Bobde had written to then Minister Prasad seeking a clarification on the intelligence inputs that the collegium had on Kirpal. The Indian Express had reported that the government wrote back reiterating its objections on the nationality of Kirpal’s partner.

On advocate Somasekhar Sundaresan, the Collegium statement said that the government had sought reconsideration of his name on the grounds “that he has aired his views in the social media on several matters which are the subject matter of consideration before the courts.”

Sundaresan was recommended by the Collegium on February 16 last year.

Underlining that all citizens have the right to free speech and expression, the Collegium said that “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 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 statement said.

The statement added 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.”

On Sathyan, the Collegium statement quoted from a report by the Intelligence Bureau: “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 SC Collegium had first recommended Sathyan on February 16, 2022 along with five others. While four were appointed, the government returned the files on Sathyan and Abdul Hameed on November 25.

On advocates Amitesh Banerjee and Sakya Sen, the statement said that the “inputs which have been furnished by the Department of Justice in the file on 25 November 2022 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 said.

Banerjee is the son of former Calcutta High Court judge UC Banerjee. Both Banerjee and Sen were first recommended by the Collegium on July 24, 2019 and have been reiterated twice.