The delay over Saurabh Kirpal’s appointment has raised many questions on the working of the collegium. One of many is transparency. Kirpal’s case might just have exposed judicial anxiety regarding representation and change. In an effort to understand what went wrong this time, Deepanshi Mehrotra revisits the failings of the collegium.
By Deepanshi Mehrotra, Law Graduate from Symbiosis Law School, Pune.
In October 2017, the Delhi High Court collegium recommended senior advocate Saurabh Kirpal for elevation as a court judge. Since then, his appointment has been deferred four times by the Supreme Court collegium without citing any reasonable explanation.
The last deference stated that the collegium would wait until they receive further input from the government. The collegium system of appointments has been a subject of criticism for maintaining high walls of opacity. And yet again, the delay in Kirpal’s appointment has raised issues of accountability and transparency in the working of the judicial collegium.
This article will discuss the facts of the Saurabh Kirpal case, bringing forth the speculations regarding the deference in his appointment. It will emphasise and highlight the issue of transparency of the collegium raised repeatedly, most of which has resurfaced again with Saurabh Kirpal’s case.
Speculations Regarding Kirpal’s Appointment, Why the Delay?
Saurabh Kirpal’s candidacy is still under consideration, and the Supreme Court collegium is yet to give a definitive answer. So far, citing security reasons, the centre has reasoned the delay in Kirpal’s appointment as his partner is a foreign national.
Kirpal’s partner of twenty years, Nicolas Germain Bachmann, holds the citizenship of Switzerland and is a human rights activist. The collegium continues to defer his appointment, mentioning the International Bureau’s Report, contents of which are unknown and non-contested.
Somewhere near the ides of March, the Former Chief Justice of India S.A. Bobde, while in office, had written to the Union Law Minister Ravi Shankar Prasad regarding Kirpal’s appointment. He gave the centre an ultimatum of four weeks to give its final remarks. In April, the Center attributed the last postponement to the questionable IB reports against Kirpal’s partner.
While the centre stands at fault for its own biases. The process adopted by the collegium is also against the Memorandum of Procedure (MoP) for appointing High Court judges. The MoP states that the collegium has the final say in matters of appointment and transfer of judges.
In this background, various speculations have come up, including Kirpal’s sexuality as a reason for his non-appointment. On multiple occasions and forums, Kirpal has stated that he believes his appointment is getting deferred because he belongs to the LGBTQIA+ community.
What’s Wrong With the Collegium System? Here We Go Again!
Saurabh Kirpal’s case has highlighted issues of muted discrimination and lack of transparency in the collegium’s decision making. The opacity surrounding the process of appointments is not new. In the recent past, the collegiums have been criticised by those in the legal corridor.
In February 2020, Arjan Kumar Sikri, former Supreme Court judge and member of the collegium from 2018–2019, indicated that there’s an explicit bias that clouds collegiums’ decision making. He stated,
“Let me be very blunt and frank. Most times, we (Collegium) go by ‘our impression’ when appointing judges (to the high courts and Supreme Court). It may not be a scientific study made about a particular candidate. Therefore, many times those who are taken may not be deserving, and many times those who are deserving might be left out. That needs to be taken care of.”
This statement itself points out the fallacies in the system. Before talking about the same, it’s imperative to brief how the collegium appointments work.
To appoint a judge, the Chief Justice of the High Court sends the proposal to the Chief Justice of India (CJI), the Union law minister, the state chief minister and the governor. The Union law minister considers reports concerning these candidates and then makes recommendations to the collegium.
The present collegium system came into existence based on three key rulings, the three Judges Cases decided by the Supreme Court. The Third Judges Case, 1998, stipulated that a collegium will be a five-member body. And it will make decisions on appointments and transfers in the higher judiciary with consensus. But these cases did not debate the issue of transparency in the functioning of the collegium.
The National Judicial Appointments Commission (NJAC) Judgement in 2015 touched upon the inconsistencies of the collegium that poses the CJI as a figure without any ‘failings’. The same sentiment was never fully realised. Though the court quashed the NJAC Act, calling it unconstitutional, it never really made the collegium any better. Despite Former Justice Chelameswar strong dissent against the collegium system more than six years ago, the collegiums’ decision making remains cloaked.
On October 3, 2017, the Supreme Court collegium passed a resolution stating that it will publish all its decisions and verdicts along with their reasons on the court’s website. The resolution was considered a positive step in ensuring more transparency and accountability.
More crucially, the collegium had said that the resolution was ‘passed to ensure transparency and yet maintain confidentiality in the collegium system’. But a mere reading of some of the publications shows that the decisions are published verbatim without any explanation. Most of these resolutions are mere announcements without any actualisation of ‘transparency’.
Instead of moving towards transparency, the Supreme Court is far from it. The primary criticism in these cases is that there’s no structure or process to investigate the allegations of conflict of interest levelled against the collegium. Thus, there are no safeguards to ensure that appointments are based on merits; instead of factors like proximity to the judges, caste, gender, and sexuality.
Further, there is no process to verify and counter unfair and unsubstantiated decisions of the collegium, and their sources are never rebutted.
Waiting for Transparency
The lack of transparency concerning the appointments of judges is no surprise. The issue of the appointment of Saurabh Kirpal has further highlighted this matter.
Such delay in Kirpal’s appointment is an uncommon occurrence because the decisions of the collegium are usually a yes or a no. In infrequent and exceptional circumstances does deference happens these many times. And as of now, the reasoning for such deference doesn’t follow any rationale, seemingly dictated by implicit biases of both the institutions- centre and state. As stated before, the CJI had the power to call a three-member collegium meeting and process Kirpal’s elevation. But it’s interesting to note that, instead, the Former CJI Bobde wrote to the Union law minister; the same further delayed the process.
Contrary to SC’s liberal stand on the LGBTQIA+ community, a fourth-time delay is not a good show, both for the centre and Supreme Court. There is no clarity of reason behind appointments or such delays.
If appointed, Saurabh Kirpal will become the first gay judge in the history of the Indian judiciary. While Kirpal’s appointment can usher representation within the judiciary, the decision still hangs at the end of the rainbow.
While the judiciary boasts democracy and transparency for the political state, its anxiety concerning a representational change is on display right now.
Transparency and representation cannot be established by merely stating so. It must reflect in the judiciary’s actions to affirm their commitment to the principles of the Constitution.
Additional Online Sources
Bhadra Sinha, Modi govt still against gay lawyer Kirpal’s elevation as HC judge, tells CJI as much, THE PRINT (April 8, 2021, 9:15 am IST), https://theprint.in/judiciary/modi-govt-still-against-gay-lawyer-kirpals-elevation-as-hc-judge-tells-cji-as-much/636130/
Maneesh Chhibber, Supreme Court Is Going Back On Promise Of Transparency, Building Case For Modi Govt’s NJAC, THE PRINT (October 18, 2019, 4:49 pm IST), https://theprint.in/opinion/supreme-court-judiciary-reforms-transparency-modi-govt-njac/307887/.
Collegium Needs Transparency, DECCAN CHRONICLE (February 21, 2020, 1:41 am IST), https://www.deccanchronicle.com/opinion/dc-comment/210220/collegium-needs-transparency.html.
Suhrith Parthasarathy, Collegium And Transparency, THE HINDU (November 1, 2017, 8:13 am IST), https://www.thehindu.com/opinion/lead/collegium-and-transparency/article19956961.ece
Collegium System in the Indian Judiciary Needs to be Reformed for Greater Transparency and Accountability, EPW ENGAGE (February 19, 2020),