Judges appointment: Kiren Rijiju says government only seeks reports from R&AW in extraordinary circumstances involving national security

Law Minister Kiren Rijiju on Friday told the Parliament that the Union government did not generally seek reports from the Research & Analysis Wing (R&AW) on proposals for appointment of judges in the High Courts and the Supreme Court except in extraordinary circumstances, involving issues related to national security.

Replying to a question by Congress MP Manish Tewari in the Lok Sabha, Rijiju said as per the Memorandum of Procedure for appointment of judges to High Courts, the proposals recommended by the High Court Collegium for appointment were considered in light of such reports/inputs as may be available to the Government for assessing the suitability in respect of the names under consideration.

Inputs were obtained from IB and provided to the Supreme Court Collegium for making assessment on the recommendees, he added.

The Minister referred to the recent remarks made by the Supreme Court Collegium after the Centre raised objection to the recommendation of gay Advocate Saurabh Kirpal for appointment as a Judge of the Delhi High Court.

The Union government had refused to notify Kirpal's appointment on the basis of R&AW reports mentioning his openness about his sexual orientation and his partnership with a Swiss national, raising apprehensions about national security.

Rijiju said the Supreme Court Collegium (SCC) vide its Minutes dated January 18, 2023 cited the reports of the Research & Analysis Wing (R&AW), which inter-alia mentioned the sexuality of an Advocate, whose name has been recommended for appointment as Judge of the Delhi High Court.

He said the appointment of Judges of constitutional courts was a continuous, integrated and collaborative process between the executive and the judiciary, which
required consultation and approval from various constitutional authorities both at the state and Central level.

The government could seek reconsideration of the
recommendations made by the SCC under the collaborative process so as to ensure that only the most suitable candidates were appointed as Judges in the High Courts, added the Minister.

He said the Apex Court, in its Judgment dated October 6, 1993 in the Supreme Court Advocate on Record vs Union of India (Second Judges Case), inter-alia observed that merit selection was the dominant method for judicial selections and
the candidates to be selected must possess high integrity, honesty, skill, high order of emotional stability, firmness, serenity, legal soundness, ability and endurance.

Besides the above, the hallmarks of the most important personal
qualifications required were moral vigour, ethical firmness and imperviousness to corrupting or venal influences, humility and lack of affiliations, judicial temperament, zeal and capacity to work, added the Minister.

Rijiju quoted the February 2 verdict of the Apex Court, which rejected two petitions filed against the appointment of a Judge in the Madras High Court.

As per the Minister, the Supreme Court had observed that political background by itself has not been an absolute bar to appointment of otherwise a suitable person. Similarly, criticism of policies or actions by the persons recommended for elevation has not been held as a ground to treat them as unsuitable.

He further mentioned the Supreme Court Collegium opining that political leanings or expression of views by a candidate did not disentitle him to hold a constitutional office so long as the person proposed for judgeship was a person of competence, merit and integrity.

He said the government, as an important stakeholder in the process of appointment of Judges in the High Courts and as laid down in the Memorandum of Procedure on appointment of High Court Judges, provided inputs which mainly contained information on the suitability, competence and integrity of the candidates under consideration for appointment to high constitutional post in the judiciary.

The recommendations along with inputs were then submitted to the SCC for advice. The government only appointed those persons who were recommended by the SCC, added the Minister.