Judges’ appointment: Indian SC stands by its choice despite govt objections

India's Supreme Court Collegium has stood by its choice of three judges for appointment to high courts despite the Indian government's objections.

In a statement made public yesterday, the collegium, which recommends appointments of judges to the higher judiciary, has said all citizens have the right to free speech and expression, and the expression of views by a candidate does not disentitle them to hold a constitutional office as long as the person proposed for a judgeship is a person of competence, merit, and integrity.

The three judges in question are Somasekhar Sundaresan, recommended for the Bombay High Court; R John Sathyan for the Madras High Court; and Saurabh Kirpal for the Delhi High Court.

Sundaresan's name was recommended by the collegium of the Bombay High Court on October 4, 2021, and on February 16, 2022, the Supreme Court Collegium endorsed his appointment.

The Supreme Court Collegium in the statement said on November 25, 2022, the government had sought reconsideration of the collegium's recommendation.

"Having considered the objection to the candidature of Somasekhar Sundaresan, the collegium 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 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," said the collegium statement.

It said Sundaresan has specialised 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.

Referring to the government's view on the appointment of the judge to the Madras High Court, the collegium said it has resolved to reiterate its earlier recommendation for the elevation of R John Sathyan.

The collegium said it found him suitable for elevation. It pointed out that the Intelligence Bureau reported that he enjoys a good personal and professional image and that nothing adverse has come to notice against his integrity.

Sathyan had shared an article published in 'The Quint', which was critical of Prime Minister Narendra Modi, and in another post portrayed the 2017 death by suicide of Anitha, for failing to pass the pre-medical entrance test, as "political betrayal" and tagged it "shame of you India".

"The IB [Intelligence Bureau] report notes that he does not have any overt political leanings. In this backdrop, the adverse comments of the IB extracted above in respect of social media posts made by him … will not impinge on the suitability, character or integrity of Shri Sathyan," the collegium statement said.

"In this view, the collegium is of the considered opinion that Shri R John Sathyan is fit and suitable for being appointed as a Judge of the Madras High Court," it added.

On the proposal for the appointment of Saurabh Kirpal, a person belonging to the LGBT community, the Indian apex court collegium statement said that from letters of the Research & Analysis Wing (R&AW), it appears that there are two objections: one is that Kirpal's partner is Swiss and the other is that he is open about his sexual orientation.

The collegium said the communications of R&AW do not reflect any apprehension that the individual conduct or behaviour of Kirpal's partner has any bearing on national security.

It said, "Many persons in high positions, including present and past holders of constitutional offices, have and have had spouses who are foreign nationals."

On the second objection, it cited the Constitution Bench of the Supreme Court said every individual is entitled to maintain their own dignity and individuality, based on sexual orientation, and added that the fact that Kirpal is open about his sexual orientation, goes to his credit.