Why is Law Minister Kiren Rijiju Taking Offence At the Collegium’s Revelation?

Former union minister P Chidambaram joined issues with the Law Minister Kiren Rijiju on Wednesday on disclosure of the objections raised by the Intelligence Bureau and Research and Analysis Wing (R&AW), the external intelligence arm of the government, to names recommended by the SC collegium for elevation as high court judges.

The collegium on Thursday last week made a public statement which explained why it was overruling the objections raised to the elevation of five lawyers as judges. The statement named the IB and R&AW, cited the objections and explained why they were not acceptable.

Law minister Kiren Rijiju broke his silence on Tuesday, five days after the collegium issued the statement—which was unprecedented and went viral on social media—and said that disclosure of ‘secret’ information furnished by intelligence agencies was a serious issue, a grave matter and the government would deal with it.  

This morning P. Chidambaram tweeted, “Why is Law Minister Kiren Rijiju taking offence at the Collegium 'revealing' the IB and RAW reports on three names being considered for judgeship? The Collegium did not reveal any sensitive material touching upon the person's integrity or the nation's security. The reports contained material that were not germane to the suitability of a person to be a judge The people have a right to know when a person considered fit by the Collegium was rejected by the central government on totally arbitrary and irrelevant considerations.”

Opinion in even legal circles is divided. Senior lawyer Fali Nariman told Rajdeep Sardesai on Tuesday evening that the law minister and the Chief Justice of India should sit together in a closed chamber and sort out the issues. While several opinion makers applauded the suggestion, author and Constitutional Law expert Gautam Bhatia was not impressed.

“He’s advocating for secret deals behind closed doors, and we’re supposed to admire that as some great principled stance?”, he tweeted.

THE BACKGROUND

The Supreme Court collegium, it appears, was forced to take recourse to the unusual step because of the dogged opposition of the government to the recommendation to elevate five lawyers. As per the existing Memorandum of Procedure the government is bound to accept the collegium’s recommendation if they are reiterated the second time.

But in the case of these five lawyers, the government has been refusing to notify them as judges for periods ranging from one year to five years. Senior lawyer Saurabh Kirpal’s name was recommended by the collegium way back in 2017 and reiterated by successive collegiums in subsequent years. Last week the collegium once again reiterated his name and explained why it was overruling the objections—and made it public.

R&AW had raised concerned about the lawyer’s partner being a foreign national while the Intelligence Bureau had pointed to his sexual orientation and his passionate espousal of LGBTQ rights. The collegium pointed out, without naming them, that a number of people holding constitutional positions were married to foreign nationals. While the collegium did not spell it out, spouses of a former President of India and the present External Affairs Minister have been foreign nationals. The fact that Mr Kirpal never made any secret of his sexual orientation went to his credit, the collegium said, and the fact that his partner is a Swiss national did not mean that he would be biased. He was also entitled to hold his own views.

The recommendation to elevate R. John Sathyan, a Chennai lawyer, to the Madras high court was objected on the ground  that he had shared an article that was critical of Prime Minister Narendra Modi. The collegium pointed out that the Intelligence Bureau report also mentioned that the lawyer enjoyed “good personal and professional image” and that nothing adverse had come to notice against his integrity.

Somasekhar Sundaresan’s name was recommended for elevation to the Bombay High Court. The objection against him raised by the law ministry, relying on agency reports, was that he aired his views on social media and seemed to be an opinionated and biased person. The collegium held that he had aired his views on subjects which were being talked about in the media and that his views were not objectionable. There was nothing to suggest that he was selectively critical of government policies, as was made out, the collegium held.

In the case of Amitesh Banerjee and Sakya sen, two Kolkata based lawyers, their names had been reiterated by the collegium repeatedly in the past, the last time being in September, 2021. No fresh objection had been cited by the ministry or the agencies, the collegium noted, and it was not for the government to keep returning the names recommended by the collegium.