Recently, the Law Ministry revealed that it is not a common practice to request reports from RAW (Research and Analysis Wing) regarding the appointment of judges in the High Courts and Supreme Court, except in cases involving national security issues. This statement holds significance after the Supreme Court Collegium dismissed the Centre’s objection to appoint gay Advocate Saurabh Kirpal as a Judge of the Delhi High Court based on RAW reports that mentioned his sexual orientation and his partnership with a Swiss national.

The Centre had raised concerns about national security. However, the Supreme Court Collegium pointed out that since the partner of the candidate is from a friendly nation, there is no reason to pre-suppose that the partner would be inimically disposed to India. The Collegium also stated that many persons in high positions, including constitutional office holders, have had foreign national spouses, and hence, there can be no objection to Kirpal’s candidature based on his partner’s nationality.

Congress MP Manish Tewari had asked in Lok Sabha whether the government uses RAW reports for the appointment of judges. In response, the Law Ministry stated that such reports are only requested in extraordinary circumstances that involve national security issues. The Ministry further clarified that the proposals for appointment as High Court Judges are considered in light of other reports and inputs available to the government to assess the suitability of the recommended candidates.

The Intelligence Bureau provides such inputs to the Supreme Court Collegium. Tewari also inquired whether an individual’s sexual orientation is legally/constitutionally relevant to their nomination as a judge. The government responded that the most important qualifications for appointment as a judge include moral vigour, ethical firmness, and imperviousness to corrupting or venal influences.

Tewari’s questions also referred to the Centre’s objection to elevate Advocate R. John Sathyan as a Madras High Court Judge, citing an online article shared by him that was critical of Prime Minister Narendra Modi. He asked whether the government considers political leanings and online posts while appointing judges.

In response, the Centre cited the recent Supreme Court decision in Victoria Gowri’s case, where it was held that political background by itself is not an absolute bar to the appointment of an otherwise suitable person. The Supreme Court Collegium has also opined that political leanings or expression of views by a candidate do not disentitle them to hold a constitutional office as long as the proposed judgeship candidate is a person of competence, merit, and integrity.

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