By Shaan Katari Libby

“Four things belong to a judge: To hear courteously; to answer wisely, to consider soberly and to decide impartially.”  

—Socrates, Circa 400 BC

These words resonate today as the Supreme Court collegium headed by Chief Justice DY Chandrachud reiterates its decision to appoint five advocates as High Court judges. One of them includes Saurabh Kirpal whose sexual orientation and his “foreign-national” partner were sticking issues. How fair is it and what about courts abroad? Do sexual orientations matter there?

Socrates’ words are sacrosanct, and selecting judges is the subject of much disagreement in India. Recent events with the Executive returning the collegium’s recommendations once again owing to sexuality and independent thought appear to have brought things to a head.

As a normal course, the president appoints High Court and Supreme Court judges after consultation with other judges of the Supreme Court and some High Courts. An apex court judge retires at 65 years (62 for High Court judges).

Saurabh Kirpal being denied a berth in the High Court judiciary because of his sexual orientation flies in the face of Article 15 of the Constitution of India which states: “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.” Article (16) states: “There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State” and “No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against…”

Judges are already in a relative position of weakness—their ultimate paymaster is Parliament. As per the Department of Justice website, salaries, pensions and allowances of Supreme Court judges are charged on the Consolidated Fund of India. All revenues and loans received by the government by way of taxes are credited to the Consolidated Fund under Article 266 (1) of the Constitution and no amount can be withdrawn from the Fund without authorisation from Parliament.

Delving into history, the Three Judges cases are relevant here. The First Judges Case (S.P. Gupta vs President Of India And Ors) held that there was primacy of the central government in deciding on judges: “consultation is different from consentaneity (i.e. consent by all). They may discuss but may disagree; they may confer but may not concur”. It would, therefore, be open to the government to override the opinion: “Where there is a difference of opinion amongst the constitutional functionaries who are consulted, it is for the Central Government to decide whose opinion should be accepted and whether appointment should be made or not.” 

The Second Judges case (Supreme Court Advocates-on-Record Assn. vs Union of India) finding was “on the question of primacy, the court concludes that the role of the Chief Justice of India in the matter of appointment of the Judges of the Supreme Court is unique, singular and primal, but participatory vis-a-vis the executive on a level of togetherness and mutuality, and neither he nor the executive can push through an appointment in derogation of the wishes of the other”. SP Gupta’s case insofar as the issue of “primacy” is concerned was overruled.

The Third Judges case was more of a reference question than a case. It was opined here that for the appointment of puisne judges of the Supreme Court of India, the opinion of the chief justice has primacy in the consultative process. The collegium should comprise the CJI and four seniormost judges of the Supreme Court. Views of relevant High Court judges should also be consulted. None would be appointed if the CJI dissented. The CJI has the discretion to disclose reasons for non-appointment.

Of late, we have had long waiting periods between when judges are recommended to the government and when they are actually confirmed. Also, names proposed by the collegium are returned for reconsideration. This laborious game has led to a shortage of judges contributing to a system where even the simplest of cases takes years to close.

As far as selection goes, we all know of excellent lawyer candidates who have been passed over. And there are some who are approached who don’t accept the post because they do not relish a stressful period of years of uncertainty before they get elevated as judges. For instance, Kirpal waited four years—luckily he has age on his side—but many don’t.

Purely on the point of appointment of a homosexual judge, a point of comparison might be the appointment of Justice Edwin Cameron of the Constitutional Court of South Africa. Edwin Cameron was born in 1953 in Pretoria. He was a lecturer in Latin and Classical Studies before he left for Oxford in 1976, on a Rhodes scholarship. He began practice as a lawyer at the Johannesburg Bar in 1983, was instrumental in the gay and lesbian movements and appointed on a permanent basis to the High Court in 1995 and in 2000 to the Supreme Court.

To be a Justice of the Supreme Court of the United Kingdom as per the Constitutional Reform Act 2005, there is a clear application procedure for those interested. Those applying need to have held “high judicial office for at least two years”. “Alternatively, applicants must have been a qualifying practitioner for at least 15 years.”

For other judges, there is the Judicial Appointments Commission (JAC)—an independent commission that selects candidates for judicial office on merit through fair and open competition from the widest range of eligible candidates. JAC is an executive non-departmental public body, sponsored by the Ministry of Justice.

The UK is, in fact, looking to increase judicial diversity. There are currently several programmes that are designed to assist eligible candidates considering a career in judicial office. Representation today in the UK judicial services remains as quite small with the Ministry of Justice’s 2020 statistics report showing that 6% of applicants that year were openly LGBT+ (3).

A few prominent examples include Sir Adrian Fulford who entered the judiciary in 1995 rising as judge for the International Criminal Court. In 2009, Sir Fulford spoke on “Against the Odds: A celebration of equality and diversity” about the problematic attitudes he encountered back in the 1990s and how he felt things had changed.

In his valedictory speech, as the outgoing Master of the Rolls and as Britain’s most senior openly gay judge, Sir Terence Etherton spoke about promising himself that he would never hide his sexuality, what representation in the judiciary meant to him and how he hoped he was leaving the state of access to justice more improved than when he entered the profession.

The first openly trans person to be appointed a High Court judge was Dr Victoria McCloud, a barrister. 

Switching now to the US: the president wields great power when it comes to the appointment of judges. Recommendations come from the Department of Justice, the Federal Bureau of Investigation, members of the Congress, sitting judges and Justices and the American Bar Association. Some judicial hopefuls even nominate themselves.

A powerful tradition of senatorial courtesy involves the senators from the state in which the vacancy occurs making the decision. A senator of the same political party as the president sends a nomination to the president, who almost always follows the recommendation. 

Despite a strong traditionalist base in America, candidates have not been deprived of allotment on the basis of sexual orientation. The first state with an LGBT Justice was Oregon, where Rives Kistler was named to the bench in 2003. Approximate figures suggest there are now 75 to 100 openly gay judges, most of them in California, New York and Chicago. Gay and lesbian judges do not appear to have had a particular impact on gay-rights issues. However, gay men and lesbians on the bench help diversify the judiciary.

Senior Counsel Sriram Panchu who has written on the matter in the mainstream media, had proposed a compromise consisting of 3:2 collegium (Judiciary: Executive). When asked specifically about the rejection on the basis of sexual preferences, his response was: “How does it (sexuality) matter? It brings diversity to the Bench. One ought not to deny anybody a seat.” He suggested that in the long run, India needs a Judicial Commission which will search wider: “Lawyers at NGOs, Academics…they should pool in the names and then have this process…” 

Should lawyers who are interested to be judges simply apply for the post—filling a standard application form—just as they do in lower courts here and at all levels in the UK? After the applications are considered and culled, some could be interviewed and appointed. It would also save time. Panchu agreed that an application process could be put in place so that suitable candidates apply.

Something drastic is needed—and fast—as it is simply not practical for litigants’ lives and those of would-be judges to be kept on hold while names get shuffled back and forth from one department desk to another. India can do better.

—The writer is a barrister-at-law, Honourable Society of Lincoln’s Inn, UK, and a leading advocate in Chennai. With research inputs from Mahesh P Sudhakaran and Sibani Suresh

Leaving the EU seems easier said than done for Britain as the High Court of Justice has now demanded that the June 23 referendum be passed through parliament

By Sajeda Momin in London

Even as British Prime Minister Theresa May was preparing for her visit to India, the High Court of Justice in London decided to derail her promise of leaving the EU by the end of March. The Court demanded that the June 23 referendum verdict be passed through parliament before any prime minister can press the Article 50 button and begin the long-drawn-out process of leaving the EU.

The verdict was given in a case filed by a group called People’s Challenge which was launched in the wake of the referendum by those who were unhappy with the Brexit result. The High Court insisted that the government could not use the royal prerogative and bypass parliament. Gina Miller, an anti-Brexit campaigner, is leading the move and the People’s Challenge has already raised more than GBP 1,60,000 to fund its legal costs donated by citizens who would like to remain in the EU.

BYPASSING VOTE

In October, a three-day hearing was held by the Lord Chief Justice, Lord Thomas along with Sir Terence Etherton, the Master of the Rolls and Lord Justice Sales. The Attorney General, Jeremy Wright QC, had accused Miller of attempting to subvert the democratic will of the British people and called it a “backdoor” effort to bypass the Brexit vote. However, on November 3 when the Court gave its ruling, the Attorney General did not turn up to hear it, probably knowing that the law was not on his side.

The government has said that it will be appealing before the Supreme Court, but it is unlikely that the higher court will change the ruling. The Court’s decision does not mean that Brexit will be overturned, but there will definitely be a delay in May’s desire to trigger Article 50 by the end of March 2017. More importantly, parliament will now have a say in the terms that the government negotiates with the EU—whether there will be a “hard Brexit” or a “soft Brexit”.

The chances of a snap general election announced by the Tory Party are also much higher, particularly if the government again loses in the Supreme Court.

As Dominic Grieve, the former Conservative Attorney General pointed out: “The issue in front of the High Court was whether you could undo statute law by a proclamation, by the use of the royal prerogative saying ‘we are leaving the EU’, thereby depriving large numbers of people in this country of statutory rights enacted by the parliament of the United Kingdom which they currently enjoy.” Government lawyers had argued that prerogative powers were a legitimate way to give effect “to the will of the people” who voted by a clear majority to leave the EU in the June referendum. But the Lord Chief Justice told the government “you can’t do that”. “The government does not have power under the crown’s prerogative to give notice pursuant to Article 50 for the UK to withdraw from the EU,” declared the Lord Chief Justice. It must go through parliament and the government must bring in a primary legislation to this effect which needs to be passed by both Houses.

The Court’s decision does not mean that Brexit will be overturned, but there will definitely be a delay in May’s desire to trigger Article 50 by the end of March 2017.

CLOSET BREXITEER

Though May was on the Remain side, albeit reluctantly, from the time of her campaign for prime ministership she has announced that “Brexit means Brexit” and there would be no going back on the results. During the last four months since she assumed premiership, she has shown herself to be a closet Brexiteer who favored a “hard Brexit”. She was not willing to negotiate with the EU on staying in the single market, essential for the British economy, because she did not want to concede on the issue of immigration—a bugbear of hers since she was in the Home Ministry. May has been refusing to give parliament a vote on the terms of Brexit because once power shifts from the hands of the executive to the legislature, the prime minister would lose control. She was determined to use the “royal prerogative” for Brexit so as not to lose control on the negotiations. But the Court’s ruling has meant that now members of both the House of Commons and House of Lords will be given a chance to shape the Brexit process.

The ruling has come as a shot in the arm for MPs across all political hues who have been demanding greater parliamentary scrutiny over Brexit and for May to reveal the broad principles of her negotiating strategy. During the referendum campaign, the Brexiteers had no strategy about what they would do if they won—they simply kept harping on taking “sovereignty back”—not expecting the vote to go in their favor. The task of leaving the EU has fallen on May and she is adamant on doing it her way. “This ruling underlines the need for the government to bring its negotiating terms to parliament without delay. Labour Party respects the decision of the British people to leave the European Union. But there must be transparency and accountability to parliament on the terms of Brexit,” said Jeremy Corbyn, leader of the Opposition.

It also gave hope to the Scottish government of getting a greater say in the move towards leaving the EU. Scotland had voted overwhelming to stay in the EU and after the results were announced, there were strong indications that it may hold a second referendum on whether it should stay in the UK or not because Brexit would not be representative of the Scottish peoples’ aspirations. Nicola Sturgeon, the first minister of Scotland, said her administration would “actively consider” whether to formally join the next legal battle challenging the UK government’s position that it has the right to trigger Article 50 based on the referendum result alone.

POLITICAL JUDGMENT?

The ruling was met with dismay by pro-Brexit MPs, particularly the far right UKIP’s leader Nigel Farage who played a major role in the Brexit campaign. “I worry that a betrayal may be near at hand,” said Farage in his usual over-the-top style. Unhappy with the Court’s ruling, UKIP’s lone member in the House of Commons, Douglas Carswell, went straight for the jugular by suggesting a need for reform of judicial appointments and calling the judgment “political”.

May has been refusing to give parliament a vote on the terms of Brexit because once power shifts from the hands of the executive to the legislature, the prime minister would lose control.

There is no denying that the majority of MPs will vote in favor of triggering Article 50 because they are keenly aware that their constituents have overwhelmingly voted for Brexit, but by putting it through parliament, “democracy will have been asserted”. The Court’s decision argues in favor of transparency in political decision-making—the bedrock of democracy and good governance.

The chances of Brexit being overturned are very minimal. It can only happen in the following scenarios:

• If parliament votes to insert a second referendum clause into the Article 50 Brexit bill
• Some economic catastrophe causes a change in public opinion by 2018
• A snap poll is won by a party which has stated both in its campaign and manifesto that it would work to remain in the EU.

These situations are possible, but one shouldn’t bet on them. While this particular battle has been won by the Remainers, it is highly unlikely that they will win the war.

Lead picture: (L-R) British Prime Minister Theresa May; Leave EU supporters celebrate the result in Sunderland after polling stations closed in the Referendum on the European Union in London. Photos: UNI