NEW DELHI: The Supreme Court's Collegium on Thursday sent back five names to the centre for its reconsideration amid the ongoing tussle between the Judiciary and the executive over the appointment of judges.
The five names of advocates that have been sent back by the SC collegium for elevation as HC judges are Saurab Kirpal, son of former CJI BN Kirpal, Amit Banerjee, Sakya Sen, Somasekhar Sundareshanand R John Sathyan.
Apart from the reiteration of names of advocates to be elevated as judges of high courts, the Collegium in its meeting held on January 17 recommended the elevation of 17 advocates and three judicial officers as judges of the high courts of Karnataka, Allahabad and Madras.
With an attempt for the Indian judiciary to get its first gay judge, the SC collegium has yet again recommended the name of Advocate Saurabh Kirpal for elevation as a judge of Delhi HC. Kirpal’s name was recommended unanimously by the collegium of Delhi HC in 2017 and has been pending for over five years. Kirpal’s elevation to the bench is being objected to by the centre due to the Swiss nationality of his partner as well as his intimate relationship and openness about his sexual orientation.
Rejecting the centre’s objection to his sexuality, the SC collegium in its resolution has said, “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.”
The resolution further says that he possesses competence, integrity and intellect, and his appointment would add value to the Bench of the Delhi HC, and provide inclusion and diversity.
With regards to the centre’s objection to his partner’s nationality, the resolution says, "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."
While reiterating the names of Advocates Amit Banerjee and Sakya Sen, whose names were first approved by SC collegium in 2019 for elevation as Calcutta HC judge but were sent back, the collegium on Wednesday said, "It was not open to the Department to repeatedly send back the same proposal which has been reiterated by SC Collegium after duly considering the objections of the Government."
Advocate Banerjee is the son of former apex court judge Justice U C Banerjee, who headed a commission that in 2006 ruled out conspiracy angle in the 2002 Sabarmati Express fire tragedy at Godhra that killed 58 'kar sevaks'. The Godhra incident had triggered widespread communal riots in Gujarat.
Advocate Sen is the son of Justice Shyamal Sen, who was elevated as a permanent judge of the Calcutta High Court in February 1986 and later became the chief justice of the Allahabad High Court. Justice Sen also served as the Governor of West Bengal from May 1999 to December 1999. Justice (retd) Sen had headed an inquiry commission which probed the multi-crore Saradha Group ponzi scam.
The Collegium remarked that views on social media attributed to the candidate, do not furnish any foundation to infer that he is biased. The body in its resolution further reiterated the recommendation of Advocate Somasekhar Sundareshan as judge of Bombay HC. His name was under reconsideration by the centre for airing his views on social media on several matters which are the subject matter of consideration before the courts.
The Collegium in its resolution said "it is of the view 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."
"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," the collegium resolution opined.
Additionally, the SC collegium in its meeting held on January 17 also reiterated the recommendation of Advocate R John Sathyan as Madras HC judge whose file was returned by the centre as he had shared a news article which was critical of PM Narendra Modi. His file was also returned since he had shared a post regarding an alleged suicide of a medical aspirant in 2017.
The collegium, in its resolution, referred to an Intelligence Bureau report which revealed the advocate enjoyed a good personal and professional image and nothing adverse had come to notice when it came to his integrity. The body also added that John Sathyan did not have any political leanings. "The adverse comments of the IB extracted above in respect of posts made by him i.e. sharing an article published in ‘The Quint’ and another post regarding committing of suicide by a medical aspirant candidate in 2017 will not impinge on the suitability, character or integrity of Shri Sathyan."
The collegium also recommended for giving precedence to him in the matter of appointment over three other names (Judicial officers Periyasamy Vadamalai, Ramachandran Kalaimathi and K. Govindarajan Thilakavadi) which the collegium further recommended for elevation as Madras HC judges.