On Gay Lawyer's Elevation, Supreme Court Contradicts Centre, Publicly

New Delhi:

The Supreme Court, in a first, has made public the reasons for the government's objections to the elevation of three senior advocates and its own response in the matter. The court uploaded its letters to the Centre on its website, publicly refuting its objections to the elevation of Saurabh Kirpal to the Delhi High Court, Somasekhar Sundaresan to the Bombay High Court and R John Sathyan to the Madras High Court. Refuting all objections of the Centre, the court has made the recommendations for a second time. Under the rules, the government has to accept a name that is sent by the Supreme Court Collegium for a second time.

The court's move to make public what customarily remains a confidential document, comes amid the tussle with the government over judges' appointment.

Mr Kirpal's name was rejected by the government along with multiple others in November last year.

The Supreme Court, in its response today, has rejected both reasons cited by the government -- that the candidate is openly gay and his partner is a Swiss national.

The communications from the intelligence department Research and Analysis Wing "do not reflect any apprehension in regard to the individual conduct or behaviour of the partner of Shri Saurabh Kirpal having a bearing on national security," read the letter, signed by Chief Justice DY Chandrachud and Justices SK Kaul and KM Joseph.

Pointing out that the country of his origin 'is a friendly nation," the judges said many holders of constitutional offices had spouses who are foreign nationals and so Mr Kirpal's candidature cannot be rejected on that ground.

"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… it would be manifestly contrary to the constitutional principles laid down by the Supreme Court to reject his candidature on that ground," read the letter from the court.  

The court said Mr Kripal could have avoided comments to the media but it is not a negative as the case has been pending for five years. His elevation, the court added, has to be done expeditiously.

In an interview to NDTV in November last year, Mr Kirpal had said that he believed his elevation was viewed with disfavour because of his sexual orientation. "I don't think the government necessarily wants to appoint an openly gay person to the bench," Mr Kirpal, 50, had told NDTV.

The court also uploaded a second recommendation for another advocate – Somasekhar Sundaresan of Bombay High Court – whose candidature was rejected as he expressed his views on social media on "matters which are the subject matter of consideration before the courts".

The top court said "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".

R John Sathiyan has posted an article on social media that was critical of Prime Minister Narendra Modi, the top court said its its second recommendation of the lawyer. He also had 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 top court's unprecedented move to make the documents public comes days after Vice-President and Rajya Sabha chairman Jagdeep Dhankhar's comments escalated the legislature versus judiciary debate. Mr Dhankhar has questioned the historic 1973 Supreme Court judgment on the Kesavananda Bharati case and the resulting basic structure doctrine. He also indicated that the judiciary should know its limits. The Congress had called it "extraordinary attack on the judiciary".