Supreme Court Collegium’s Landmark Reiterations Show It Is No Longer Pusillanimous

Although reiteration of a recommendation is only a part of the process of appointing Judges in the Higher Judiciary as envisaged by the Supreme Court in its Second Judges Case (1993), Thursday’s reiterations are significant in many respects. For the first time, the Collegium has deemed it appropriate to upload reasoned reiterations of recommendations in the public domain. This is not aimed to show the Executive in a poor light. On the contrary, the aim is to explain the merits of the Collegium’s reiterations in the light of the Executive’s past tendency to ignore not just some of its recommendations, but its reiterations as well.

The previous collegiums under successive CJIs considered it politically correct to acquiesce to Executive’s bullying or exercise of pocket veto in the light of recommendations with which it was unhappy for extraneous reasons. The current collegium, under the new CJI, D.Y.Chandrachud, has come out from the shadows and seen merit in calling a spade a spade. By doing so, the new Collegium does not lose anything. If the Executive does not comply with Collegium’s fresh reiterations, history is likely to judge the former harshly, even if the latter is unable to enforce them as in the past. That is the effect of reasoned decisions, and the significance of transparency in a world increasingly under the influence of public opinion.

The Collegium’s reiterations are in consonance with the letter and spirit of the Constitution, even if they did not explain them in so many words. The reiteration of recommendation to elevate senior advocate Saurabh Kirpal as a Judge of the Delhi High Court is a succinct articulation of what discrimination on the ground of one’s sexual orientation could entail.

Significance of Saurabh Kirpal’s elevation as Judge of Delhi High Court

It is tempting to find a parallel to the appointment of Justice Edwin Cameron of the Constitutional Court of South Africa, who too was openly gay like Kirpal, before his elevation to the court. India’s rich jurisprudence under Article 15(1) of the Constitution is an additional factor as to why the inordinate delay in elevating Kirpal is unjustified. The wording of Article 15(1) - that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them - made it easier for the courts to condone discrimination on the basis of sex, if other contributory factors of discrimination were present in a given case.

As scholar Kalpana Kannabiran explains in her engaging book, Tools of Justice: Non-discrimination and the Indian Constitution’, (2012) the phrase ‘or any of them’ -used in Article 15(1) - has a meaning distinct from ‘only’. She suggested that the phrase ‘or any of them’ clearly implied that the State shall not discriminate solely on the listed grounds, and on any of the listed grounds -in the singular or plural, and on grounds of any of the listed indices with factors that do not figure in the list- those that allude to the larger context.

It took six years for the Supreme Court to incorporate Kannabiran’s thesis in its jurisprudence till it delivered its verdict in Navtej Singh Johar in 2018. The Supreme Court held in this case that the formalistic interpretation of Article 15 - as upheld by it in earlier cases - would render the constitutional guarantee against discrimination meaningless.

In a subtle sense, the Executive used the judicial philosophy which guided the Supreme Court’s decisions before Johar in its refusal to elevate Kirpal. As the Collegium’s reiterated recommendation makes it clear, the Executive implied that Kirpal suffered dual disqualification - discrimination on the basis of sex plus another ground. This ‘another’ ground was again not listed under Article 15, but implied: having a foreign national as his partner. In Johar, the Court emphatically rejected this contention, as in its view, discrimination on the basis of sex, by nature, is intersectional, and therefore, cannot be divorced from other discriminatory features.

The U.S. Supreme Court’s 6:3 decision in 2020 in Bostock vs Clayton County shows that the words “sex”, “sexual orientation” and “transgender status” are inextricably intertwined making it impossible to treat discrimination on the ground of sexual orientation or transgender status different from that of sex, and thereby deny legal protection against discrimination on the ground of sex.

In Bostock, the U.S.Supreme Court considered three cases, each of which raised similar discriminatory concern. In Bostock, Gerald Bostock, was fired from employment, after participating in a gay softball league. In Altitude Express, Inc. v Zarda, Donald Zarda was fired shortly after disclosing to a customer that he was gay. In R.G.& G.R.Harris Funeral Homes v Equal Employment Opportunity Commission, an employee who had previously presented herself as male was fired after notifying her employer that she planned to begin presenting as female in anticipation of undergoing gender reassignment surgery.

In Bostock, the Court examined Title VII of the Civil Rights Act of 1964, which forbids employment discrimination that occurs because of an employee’s race, colour, religion, sex, or national origin. The majority judgment, authored by the conservative Judge, Justice Neil Gorsuch, refused to consider the intentions of the lawmakers in 1964, which might have been different. The text of Title VII clearly prohibits employment discrimination on the basis of sexual orientation or gender identity, Justice Gorsuch concluded.

The U.S.Supreme Court’s decision in Bostock buttresses the viewpoint that Judges are not likely to be biased while considering the facts of a case. The Collegium’s resolution on Kirpal’s elevation quotes the Union Law Minister as having stated in his April 1, 2021 letter: “Though homosexuality stands decriminalised in India, nonetheless same-sex marriage still remains bereft of recognition either in codified statutory law or uncodified personal law in India”. The resolution further quotes the Law Minister as having stated that the candidate’s “ardent involvement and passionate attachment to the cause of gay-rights” would not rule out the possibility of bias and prejudice.”

It needs to be asked, if in the U.S. Supreme Court, where the political allegiance of each of the nine Judges is well-known by virtue of which President had appointed them, two conservative Judges (Justices Gorsuch and the Chief Justice John Roberts) -whose political masters had shown no clear sympathy for LGBTQI rights in the past - could take a dispassionate view in Bostock and tilt the scales in favour of their rights, is there a justification for the Law Minister’s apprehension that Kirpal’s judicial decisions might suffer from bias and prejudice? The Collegium has rightly drawn attention to the constitutionally recognised rights which Kirpal espouses, and held that his appointment will provide inclusion and diversity.

Somasekhar Sundaresan, R.John Sathyan and Justice Krishna Iyer

The Collegium’s reiteration of its recommendation to elevate Somasekhar Sundaresan as a Judge of the Bombay High Court makes it clear that the views on social media attributed to him, do not furnish any foundation to infer that he is biased. The Department of Justice’s view that he is selectively critical on the social media on the important policies, initiatives and directions of the Government, has been rightly rejected by the Collegium on the ground that expression of views by one does not disentitle him to hold a constitutional office. The Collegium drew attention to the fact that Sundaresan’s views do not suggest any links with any political party with strong ideological leanings.

The Collegium’s rebuttal of the Intelligence Bureau’s (IB) report on R.John Sathyan, its proposed appointee to the Madras High Court is a clear pointer that the Government must distinguish between overt political leanings from certain innocuous activity of the appointee on the social media. The IB suspected Sathyan’s suitability as a Judge because of his sharing of an article published in The Quint which was critical of the Prime Minister, Narendra Modi. Sathyan had also commented adversely calling the suicide by a medical aspirant, Anitha, who ended her life in 2017 because of her failure to clear NEET examination, as a “political betrayal”. The collegium dismissed the IB’s reservations saying these instances would not impinge on Sathyan’s suitability, character and integrity.

The Government’s opposition to Sundaresan’s and John Sathyan’s elevation is in contrast to the then Union Government’s active backing to the elevation of Justice Krishna Iyer to the Supreme Court in 1973. Justice Krishna Iyer’s open leftist leanings were cited against his elevation by none other than Soli J Sorabjee, who later conceded that he was proved wrong in his assumption that Justice Iyer would be biased. Justice Krishna Iyer, after a three years’ tenure as Judge of the Kerala High Court, had been appointed as a member of the Law Commission in September 1971.

Legal Position Emphasised

While reiterating its recommendations to elevate Amitesh Banerjee and Sakya Sen as Judges of the Calcutta High Court, the Collegium has underlined that it is not open to the Department of Justice to repeatedly send back the same proposal which has been reiterated by the Collegium after duly considering the objections of the Government. The Collegium has done well by reminding the Government of the correct legal position with regard to the status of reiterated recommendations, that they are binding on the Government, and that there is no room for thinking differently in the light of what the Attorney General for India, R.Venkataramani suggested to a bench presided by Justice Kaul while hearing the petition filed by Advocate Association of Bangalore.