As vacancies pile up in high courts, gloves are off in Centre-SC showdown

The Supreme Court collegium, through its recent resolutions, has made it crystal clear that every individual is entitled to maintain their own individuality based on sexual orientation, free speech cannot disentitle somebody from judgeship, and being critical of a dispensation will have no bearing on integrity — which has become a test for the government.

The Central government is aggressively pursuing to have more say in judicial appointments claiming it will infuse transparency in the mechanism.

Against this backdrop, the collegium resolutions bring a new face of judiciary, which may present hard choices for the government: Bring forth concrete reasons for rejecting a candidate for having critical views on government policies does not impinge on integrity; and a candidate’s ardent involvement in gay rights would not shut him out of judgeship. The resolutions cover the proposed appointments of advocates Saurabh Kirpal, R. John Sathyan, Somasekhar Sundaresan, Amitesh Banerjee, and Sakya Sen.

The resolutions have shown that the judiciary has no Achilles’ heel — leverage if there was any to be taken has ceased to exist — rather it wants straight answers from the government, significant in view of the government’s hostile pitch against the collegium system.

The Supreme Court collegium objected to a R&AW communication on advocate Saurabh Kirpal, who is openly gay and son of former Chief Justice of India B N Kirpal. Saurabh was recommended for appointment as judge by the collegium of the Delhi High Court in October 2017 and approved by the Supreme Court collegium on 11 November 2021. However, the government returned his file to the apex court collegium on November 25, 2022, for reconsideration.

Reiterating Saurabh’s name as a Delhi High Court judge, the collegium in a statement said “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….”.

The collegium, headed by Chief Justice of India D Y Chandrachud, said Saurabh possesses competence, integrity, and intellect and his appointment will add value to the bench and provide inclusion, and diversity.

The collegium also reiterated its recommendation for elevation of advocate R. John Sathyan as a judge of the Madras High Court, after the Central government returned his file citing that he had shared an article critical of the prime minister. And, in another resolution, the collegium backed the elevation of advocate Somasekhar Sundaresan as a judge of the Bombay High Court. In the case of Sundaresan, the government said he has been “selectively critical on social media on the important policies, initiatives and directions of the government”.

The collegium headed by the Chief Justice of India has made it apparent that judicial appointments cannot remain pending indefinitely, and the government’s sitting on the files business has to go.

The Centre has minced no words in criticizing the collegium system: Vice-President Jagdeep Dhankar aired his critical views on the Supreme Court scrapping the National Judicial Appointments Commission while Law Minister Kiren Rijiju had said the collegium system is alien to the Constitution.

The resolutions have established the government’s priority and also aspects of the character of the candidates which are non-negotiable, while appointing a judge. However, the collegium has advocated at establishing a progressive framework, which is more liberal.

The government claims the collegium system turns its back on quality and diversity on the bench, while the resolution establishes that the judges’ appointment process values integrity and diversity.

The current resolutions may or may not put the judiciary and the Centre at loggerheads, and if names reiterated by the collegium do not get approval from the government, then it will renew the challenges involved in the appointment of judges. The delay in appointments will exact its toll on a judiciary, which is already grappling with the burden of colossal pendency of cases and shortage of judges.

Over six lakh cases are pending in the Bombay High Court; the Delhi High Court has a pendency of over one lakh cases; and the Madras High Court is grappling with the burden of over five lakh cases.

According to the Ministry of Law and Justice, as on December 1, 2022, the sanctioned strength for Delhi High Court is 60 and it has 15 vacancies. For Bombay High Court the sanctioned strength is 94 and for Madras High Court, it is 75. Bombay HC has 28 judicial vacancies and Madras HC has 21. The total sanctioned strength of high courts in the country is 1,108 and there are 330 vacancies.

20230122-082003

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