The Supreme Court Collegium on Thursday asserted its supremacy in appointment of judges and backed its earlier proposal to elevate five judges. The Collegium summarily rejected the inputs provided against them by intelligence agencies to the Centre.

The development came days after Vice President Jagdeep Dhankar launched a scathing attack on the judiciary on the issue of appointment of judges and Law Minister Kiren Rijiju sent a letter to the Chief Justice of India seeking Government representation in the Collegium.

Under the rules, the Government has to accept a name that is sent by the Supreme Court Collegium for a second time.

The names of five advocates sent back to the Centre by the Collegium on Thursday for appointment as judges are:  Saurabh Kirpal for the Delhi High Court, R John Sathyan for the Madras High Court, Somasekhar Sundaresan for the Bombay High Court, Amitesh Banerjee and Sakya Sen for the Calcutta High Court.

Interestingly, this is the second time the Collegium reiterated the names of two advocates — Amitesh Banerjee and Sakya Sen — for appointment as judges of the Calcutta High Court “expeditiously”, saying it was not open for the Government to repeatedly send back the same proposal.

Advocate Banerjee is the son of former apex court judge Justice UC Banerjee, who headed a commission which in 2006 ruled out conspiracy angle in the 2002 Sabaramati Express train inferno at Godhra that killed 58 “kar sevaks”. The Godhra incident had triggered widespread communal riots in Gujarat.

Advocate Sen is the son of Justice Shyamal Sen, who was elevated as a permanent judge of the Calcutta High Court in February 1986 and later became the chief justice of the Allahabad High Court. Justice Sen also served as the Governor of West Bengal from May 1999 to December 1999.

Justice (retd) Sen had headed an inquiry commission which probed the multi-crore Saradha Group ponzi scam.

The  Collegium comprising Chief Justice of Indian DY Chandrachud and Justices SK Kaul and KM Joseph rejected RAW’s inputs against Saurabh Kirpal citing his gay sex orientation, and Intelligence Bureau inputs against John Sathyan and  Somasekhar Sundaresan for critical posts in social media against Prime Minister Narendra Modi.

The Collegium asked the Centre to expedite the five advocates’ appointments to High Courts as judges.

In separate letters for the reiteration of the five persons appointment as judges, uploaded in the Supreme Court’s website, the Collegium that rejected Kirpal’s elevation based on the RAW report on his sexual preferences is against constitutional principles on equality.  

“The recommendation unanimously made by the Collegium of the Delhi High Court on October 13, 2017, and approved by the Supreme Court Collegium on November 11, 2021, has been referred back to us on November 25, 2022 for reconsideration in light of the observations made in the file,” said the Collegium statement.

“From the letters of the Research & Analysis Wing (R&AW) dated April 11, 2019 and March 18, 2021, it appears that there are two objections to the recommendation which was made by the Collegium of this court on November 11, 2021 approving the name of Shri Saurabh Kirpal namely: (i) the partner of Shri Saurabh Kirpal is a Swiss national, and (ii) he is in an intimate relationship and is open about his sexual orientation,” the statement said, went on lauding Kirpal for being open about his sexual orientation, saying it “goes to his credit” that he has not been surreptitious about it. 

The Collegium said in this backdrop, it resolved to reiterate its recommendation of November, 11, 2021 for appointment of Saurabh Kirpal as a judge of the Delhi High Court and said the Government should process it expeditiously.” 

Saurabh Kirpal is the son of former Chief Justice of India BN Kirpal.

The court, however, said Kripal could have avoided speaking to the media on this issue.

In an interview to NDTV in November last year, 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,” Kirpal, 50, had said.

The Collegium brushed aside the IB report which cited social media posts of John Sathyan, critical of Prime Minister Narendra Modi and said that the rejection is against the freedom of speech and expressions. 

The statement of the Collegium reproduced the IB report against Sathyan. “As per open sources, two posts made by him, i.e. sharing of an article published in ‘The Quint’, which was critical of the Prime Minister, Narendra Modi; and 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,” said the IB note reproduced in the Collegium statement. 

“The Intelligence Bureau has reported that he enjoys a good personal and professional image and that nothing adverse has come to notice against his integrity. Shri Sathyan belongs to the Christian community. The IB 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 posts made by him i.e. sharing an article published in ‘The Quint’ and another post regarding committing of suicide by a medical aspirant candidate in 2017 will not impinge on the suitability, character or integrity of Shri Sathyan,” said Collegium reiterating its recommendation.

On the IB inputs against Somasekhar Sundaresan, citing his social media posts and terming him as biased person, the Collegiums said it considered the objection to the candidature of Somasekhar Sundaresan but was of the view that the posts 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. 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,” said the Collegium, adding, Somasekhar Sundaresan being a specialized in commercial law would be an asset to Bombay High Court.

Sundaresan was recommended for elevation by the Bombay High Court Collegium in October 2021. Subsequently, in February 2022, the Supreme Court Collegium also recommended his name.

However, on November 25, 2022, the Central Government opposed his elevation. The apparent reason given by the government was that Sundaresan “aired his views in the social media on several matters which are the subject matter of consideration before the courts.”

On the IB reports against Amitesh Banerjee and Sakya Sen, the collegium said the inputs furnished by the Department of Justice in the file on November 25, 2022 do not contain any fresh material or ground. “

Moreover, after the Supreme Court Collegium reiterated the proposal on September 1.  2021, it was not open to the Department to repeatedly send back the same proposal which has been reiterated by the Supreme Court Collegium after duly considering the objections of the Government,” said the Collegium reiterating its resolve for the appointment of Amitesh Banerjee and Sakya Sen as the Calcutta High Court Judges.

The names of advocates Banerjee and Sen were initially recommended by the Collegium of the Calcutta High Court on December 17, 2018 and the Supreme Court Collegium had approved the proposal on July 24, 2019.

Apart from reiteration of names of advocates to be elevated as judges of high courts, the Collegium in its meeting held on January 17 recommended the elevation of 17 advocates and three judicial officers as judges of the high courts of Karnataka, Allahabad and Madras.

For the Madras High Court, the three-member collegium has recommended the names of advocates Venkatachari Lakshminarayanan, Lekshmana Chandra Victoria Gowri, Pillaipakkam Bahukutumbi Balaji, Ramaswamy Neelakandan and Kandhasami Kulandaivelu Ramakrishnan.

It has also recommended the names of three judicial officers — Periyasamy Vadamalai, Ramachandran Kalaimathi and K Govindarajan Thilakavadi — for judgeship at the Madras High Court.

For the Allahabad High Court, the collegium has approved the proposal for elevation of the nine advocates-- Prashant Kumar, Syed Qamar Hasan Rizvi, Manish Kumar Nigam, Manjive Shukla, Anish Kumar Gupta, Nand Prabha Shukla, Arun Kumar Singh Deshwal, Kshitij Shailendra and Vinod Diwakar.

The Collegium has recommended the names of advocates Vijaykumar Adagouda  Patil, Rajesh Rai Kallangala and Tajali Moulasab Nadaf for elevation as judges of the Karnataka High Court.