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A Delhi-based lawyer and legal researcher, Appnender, stated, “There is no clarity for the basis for selection.”
The Supreme Court collegium forwards its recommendations to the law minister. Should the minister have reservations, he requests the collegium to review its decision. While the minister lacks official veto power, he effectively wields a de facto veto, “giving the executive a crucial role in the selection and appointment process,” according to a January report by the International Commission of Jurists.
‘The system is broken’
Critics of the executive’s involvement highlight the case of Saurabh Kirpal, a senior advocate and constitutional expert. the collegium recommended him for a judgeship in the Delhi High Court in 2017.
Kirpal, an openly gay lawyer, was part of the legal team that successfully advocated for the decriminalization of homosexuality in India. His appointment would have made him the first openly gay High Court judge in India.
However, the law minister returned Kirpal’s name to the collegium, citing his partner’s Swiss nationality as a potential security threat. (notably, at least three senior judges have had foreign spouses.) The collegium re-recommended Kirpal in 2018,and again twice in 2019.
In early 2023,for the first time,the Supreme Court publicly disclosed the discussions concerning Kirpal’s potential nomination with the executive branch. These details revealed that the law minister acknowledged in a letter that Kirpal’s sexuality was the underlying issue. Kirpal has not yet been appointed as a judge.
Kirpal commented,”in a mature democracy,when there is a systemic imbalance when it comes to depiction of the marginalized,it means the system is broken.”
The way forward
Kirpal argues that granting parliament greater authority over judicial appointments would inevitably lead to court decisions being influenced in its favor. He explained, “The biggest litigant in this country is the government of India – and that would be choosing who adjudicates cases.”
Kurian Joseph, a Supreme Court judge who retired in 2018, contends that this is already occurring.He stated, “In practise, the executive has been arm twisting the judiciary and having a final say on the appointments.”
joseph, one of the four judges who overturned the 2014 legislation establishing the National Judicial Appointment Commission, believes that the law would have rendered judges dependent on parliament.However,a decade later,Joseph suggests that the commission might have been a preferable choice.
He concluded, “At least, we would know who to criticize.”
