Top court draws a line in the sand

A snowballing confrontation between two branches of India’s democracy hit a new pitch this week over three names for appointment to the higher judiciary. The collegium, headed by Chief Justice of India DY Chandrachud and also comprising justices SK Kaul and KM Joseph, broke away from recent convention and issued a public note listing reasons for appointing Saurabh Kirpal to the Delhi high court, Somasekhar Sundaresan to the Bombay HC and R John Sathyan to the Madras HC. In Mr Kirpal’s case, the collegium brushed aside the government’s two-fold concern — about his advocacy of equal rights for same-sex relationships, which the executive said could give rise to bias and prejudice, and about his partner being a Swiss national, which the government said may pose a security threat. The collegium rightly pointed out that the top court had affirmed the constitutional rights of every person, regardless of their sexual orientation, to live a life of dignity, and to deny someone’s candidature based on this ground would be an affront to constitutional principles. This was done largely through public comments made by the law minister, with even the vice-president on one occasion expressing his disapproval of the basic structure doctrine, sparking serious worries about judicial autonomy and concerns that the government was attempting to gain influence over a process that could subvert the judiciary’s role as a defender against executive and legislative overreach, and the excesses of a majoritarian democracy.