Lok Sabha Question No. 241 (STARRED), answered on 2023-03-17
Subject: R&AW Reports on Supreme Court Collegium
Ministry: LAW AND JUSTICE
Asked by: Manish Tewari

## GOVERNMENT OF INDIA MINISTRY OF LAW AND JUSTICE

## DEPARTMENT OF JUSTICE

## LOK SABHA

## STARRED QUESTION NO. 241

## TO BE ANSWERED ON FRIDAY, THE 17.03.2023

## R&AW Reports on Supreme Court Collegium

## *241. SHRI MANISH TEWARI:

Will the Minister of LAW AND JUSTICE be pleased to state:

- (a) whether it  is  a  fact  that  the  Supreme  Court  collegium  cited  reports  by R&AW regarding the sexuality of an advocate, if so, the details thereof;
- (b) whether it is the practice of the Government to use R&AW reports for appointment of judges to the Supreme Court, if so, the details thereof;
- (c) whether the sexual orientation of an Indian citizen is legally/constitutionally germane to their nomination as a judge, if so, the details thereof;
- (d) whether the Government takes into consideration Political leanings and online posts for consideration of appointment of judges, if so, the details thereof; and
- (e) the  details  regarding  the  number  of  times  collegium  recommendations have been sent back between May 2019 to February 2023?

## ANSWER

## MINISTER OF LAW AND JUSTICE

(SHRI KIREN RIJIJU)

- (a) to (e): A statement is laid on the Table of the House.

Statement referred to in reply to parts (a) to (e) of Lok  Sabha Starred  Question  No.  *241  due  for  answer  on  17.03.2023  regarding 'R&AW Reports on Supreme Court Collegium'

(a)  to  (e):The  Supreme  Court  Collegium  (SCC)  vide  its  Minutes  dated  18th January,  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.Generally, it is not a practice to seek R&AW reports on proposals for appointment of judges in the High Courts and the Supreme Court except in extraordinary circumstances, involving issues related to national security.

As  per  the  Memorandum  of  Procedure  for  Appointment  of  Judges  of High  Courts,  the  proposals  recommended  by  the  High  Court  Collegium  for appointment as High Court Judges,  are to be considered in the light of such other reports/inputs as may be available to the Government for assessing the suitability in respect of the names under consideration.Accordingly, IB inputs are obtained and provided to the SCC  for  making  assessment  on  the recommendees.

Supreme  Court  in  its  Judgment  dated  6.10.1993  in  Supreme  Court Advocate  onRecord  Vs.    Union  of  India  (Second  Judges  Case)  inter-alia observed that merit selection is 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 are moral vigour, ethical firmness and imperviousness to  corrupting  or  venal  influences,  humility  and  lack  of  affiliations,  judicial temperament, zeal and capacity to work. In a recent judgment dated 10.02.2023 in WP (Civil) No. 148 of 2023, dismissing the Writ Petitions filed in the matter of  appointment  of  a  Judge  in  the  Madras  High  Court,  the  SupremeCourt 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.

The Supreme Court Collegium has also opined that political leanings or expression  of  views  by  a  candidate  does  not  disentitle him  to  hold  a constitutional office so long as the person proposed for judgeship is a person of competence, merit and integrity.  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 provides inputs  which  mainly  contain  information  on  the  suitability,  competenceand integrity of  the  candidates  under  consideration  for  appointment  to  high constitutional post in the judiciary.  The recommendations alongwith inputs are then  submitted  to  the  SCC  for  advice.      It  may  be  mentioned  that  the Government only appoints those persons who are recommended by the SCC.

Appointment of the Judges of the constitutional courts is a continuous, integrated and collaborative process between the executive and the judiciary. It requires consultation and approval from various constitutional authorities both at  state  and  central  level.    The  Government  can  seek  reconsideration  of  the recommendations made by the SCC under the collaborative process so as to ensure  that  only  the  most  suitable  candidates  are  appointed  as  Judges  in  the High Courts.

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