SC collegium’s recommendation of Saurabh Kirpal for Delhi HC judgeship is a historic moment

In a historic move, the Supreme Court collegium led by Chief Justice of India N. V. Ramana has finally recommended the name of Senior Advocate Saurabh Kirpal to the Central government for appointment as a judge in the High Court of Delhi.

Initially, the Delhi High Court collegium led by then Acting Chief Justice Gita Mittal had recommended Kirpal’s name in October 2017, but it was not cleared by the Central government because of some conflict of interest relating to his partner who is a foreigner.

The Centre had communicated its objections to the Chief Justice of India and the collegium had deferred his name four times.

Surprisingly, three Chief Justices of India dealt with this matter but it is only Chief Justice Ramana who took a courageous stand and rejected the Central government’s objections regarding any conflict of interest in Saurabh Kirpal’s case.

Finally, the Supreme Court collegium has rightly recommended his name for the judgeship of the High Court of Delhi, asserting its primacy in judicial appointments. Now the ball is in the Centre’s court. If the government clears his name, he will be the first HC judge from the sexual minorities in the country. It will indeed be a historic moment. His appointment will also send a good message to society and will bring more diversity to the higher judiciary.

As per existing constitutional practice and procedure relating to the appointments of judges to the Supreme Court and High Courts, the Supreme Court collegium has the conclusive power to recommend judges’ names to the President of India who makes the formal appointments in consultation with the Prime Minister and the Union Minister of Law and Justice.

The Chief Justice of India (CJI) is the head of the Supreme Court collegium which also comprises two senior-most judges of the apex court who finalize the names of High Court judges unanimously.

The High Court collegium led by the Chief Justice of the concerned High Court initiates the proposal to appoint a judge to any High Court and sends its proposal to the Central government, the concerned state government, and the Supreme Court collegium. The state government does not have much say in the entire process. It is only the Central government that does a background check of the recommended persons and sends its views to the CJI who shares the same with his two collegium colleagues.

But the Supreme Court collegium has the ultimate power to accept or reject the Central government’s views, objections, etc. If the Supreme Court collegium recommends the name of a judge, the President of India will have no option but to appoint him a judge of the High Court.

Justice M B Lokur explains this position in his judgment in the Fourth Judges’ case in these insightful words: “The Chief Justice of India and other judges are undoubtedly well qualified to give proper advice with regard to the knowledge, ability, competence and suitability of a person to be appointed as a judge of a High Court of the Supreme Court. There is no reason, therefore, why the opinion of the Chief Justice of India taken along with the opinion of other judges should not be accepted by the executive, which is certainly not better qualified to make an assessment in this regard.”

“However, it is possible that the executive may be in possession of some information about some aspect of a particular person which may not be known to the Chief Justice of India and as postulated in ‘Sankalchand Himatlal Sheth’ and in the Second Judges case, the entire material should be made available to the Chief Justice of India leaving it to him/her to decide whether the person recommended for appointment meets the requirement for being appointed a judge or not, despite any antecedents, peculiarities, and angularities.”

“If the Chief Justice of India and others with whom he/she has discussed the matter concludes – unanimously - that the person ought to be appointed as a judge of a High Court or the Supreme Court despite the antecedents, peculiarities and angularities, there can be no earthly reason why that collective view should not be accepted. The Chief Justice of India is in a sense the captain of the ship as far as the judiciary is concerned and his/her opinion (obtained collectively and unanimously) should be accepted rather than the opinion of someone who is a passenger (though an important one) in the ship.”

“Dr Ambedkar was of the confirmed view that the judiciary should be independent and impartial and if the Chief Justice of India does not have the final say in the matter, then the judiciary is, in a sense, under some other authority and therefore not independent to that extent. This would be a rejection of the views of Dr Ambedkar and a negation of the views of the Constituent Assembly”.

Given the above ruling of the Apex Court, the Central Government has no power to override the Supreme Court collegium’s recommendation. But the legal community is surprised to observe the earlier stand of the Supreme Court collegium on this issue.

A five-judge Constitution Bench of the Supreme Court had decriminalised consensual same-sex relationships between adults in 2018. Through this historic ruling, the sexual minorities were set free from the discriminatory jaws of a colonial-era law. As such, the Central Government’s reluctance in giving a green signal to Saurabh Kirpal’s name did not make any sense.

Not only this, but the Supreme Court collegium also deferred a decision on Saurabh Kirpal not once, but four times. Was it justified? I do not think so. The collegium was expected to confront the government on this issue which relates to the dignity of the sexual minorities.

In two cases such as the NALSA case and the Navtej Jauhar case, the apex court has strongly defended the human rights and dignity of the LGBT community. If the court does not follow its own verdicts, then what can it expect from others? Those who preach should also practice the same.

Had the Supreme Court collegium recommended his name on earlier occasions, the government could not have delayed his appointment for four years. A delayed appointment affects the career of a judge very much.

Thankfully, the Supreme Court collegium headed by CJI Ramana has rightly rejected the objections of the government and stood to protect the dignity of the sexual minorities in the country. Kirpal deserves this assignment. He has made a great contribution to the movement for the decriminalization of homosexuality in the country.

The recommendation is a recognition of his prowess as a lawyer and activist of human rights, dignity, and gender equality. The government has no justification in objecting to his choice of partner, which is entirely a personal matter. There have been judges in the country whose spouses were foreigners. The government must respect the Supreme Court collegium’s decision and should not stand in the way of the appointment of a brilliant lawyer as a High Court judge.

There is no place for gender discrimination in an inclusive democracy that cares for all. Well done Chief Justice Ramana! India needs an inclusive and diverse judiciary.

(The writer is an advocate at the Supreme Court of India)