On November 23, the Union government finally notified the appointment of senior advocate Somasekhar Sundaresan as an additional judge of the Bombay High Court, almost two years after his name was first recommended by the Supreme Court Collegium.
The warrant of his appointment as an additional judge was signed by the President of India. The said announcement was made by Union Law Minister Arjun Ram Meghwal on ‘X’ (formerly Twitter).
It is essential to note here that his name was first recommended by the collegium for judgeship in February 2021. His name was reiterated by the Supreme Court collegium to the Union government in February 2022. Pursuant to this, in November 2022, the Union government had raised “objections” against his appointment based on the fact that he had expressed his view on matters pending before the court on social media. The Union government had suggested a “reconsideration” of the recommendation.
Standing its ground, the collegium had, in January 2023, rejected the objections raised by the Union government. As per a report of Scroll, the collegium had stated that the manner in which Sundaresan had expressed his views “does not justify the inference that “he is a highly biased opinionated person or that he has been selectively critical on social media on important policies, initiatives and directions of the government”. In addition to this, the Collegium had also rejected the allegation that Sundaresan had any “links with any political party with strong ideological leanings”.
The collegium had further emphasised the fundamental right to freedom of speech and expression which is available to all the citizens of India under the Constitution under Article 19.
“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 collegium had then stated.
According to a report in the Leaflet, the collegium had believed that advocate Sundaresan’s experience with commercial law would be beneficial to the Bombay High Court, which handles a lot of issues pertaining to securities and commercial law, among other areas. It is worth noting that, in this tussle between India’s higher judiciary and the executive, the union government, through it’s adant conduct, was finally compelled to give in to the appointment after nearly two years of the initial recommendation. This essentially means that Sundaresan has lost out on seniority over seven judges whose names were recommended by the collegium and appointed by the Union government in the interim.
Justice Victoria Gowri versus advocate Sundaresan — cherry picking by the Union government?
The stance taken by the union government in the case of appointment of advocate Sundaresan is in stark contrast with the appointment and elevation of L. Victoria Gowri as an additional judge of the Madras High Court.
The appointment of the impugned judge had been processed by the Union government at extraordinary speed even as there was an uproar regarding the appointment. Questions had been raised after some of her interviews and speeches had come to light wherein it was felt that her unabashed prejudice against minorities was evident. Talks of her links with the ruling BJP (Bharatiya Janata Party) had also surfaced. Her oath taking ceremony had taken place while the Supreme Court was still hearing petitions against her appointment. The petitions had highlighted that by her making speeches denouncing Christians and Muslims she had rendered herself ineligible to act without discrimination “on the ground of religion”. The said petitions had been rejected by the Supreme Court based on the ground that the suitability of any appointee cannot be revisited after the collegium had decided on it.
While the Union government has had a mentality of picking and choosing their favourites and not abiding to either rule or principle, the present Chief Justice of India has maintained his stance of protecting the right to speech and expression of those advocates under scrutiny for judgeship.
In a recent conversation at Harvard Law School, USA, CJI DY Chandrachud responded to a question on the controversial appointment of Justice Victoria Gowri. The audience member had raised concerns about the collegium not withdrawing the recommendation despite lawyers accusing her of making “hate speeches” against religious minorities.
Upon this, as per a report of LiveLaw, CJI Chandrachud explained the multiple levels of scrutiny and feedback from various entities, including investigative agencies, in the process of judicial appointments. He had highlighted the delicate balance between promoting transparency and protecting the privacy of individuals being considered for judgeship, raising apprehensions regarding the unwillingness of qualified individuals to accept judicial office due to extreme scrutiny.
Most importantly, CJI Chandrachud had said that past political connections would not necessarily disqualify individuals from becoming judges.
As per the report of the LiveLaw, CJI Chandrachud had said “You said that she was a member of a political party. We looked at it very, very carefully. The nature of the speech, which that judge is alleged to have made at a particular point of time, again, is looked at very carefully. One of the processes that we follow in the collegium is to ask for a report from the chief justice. If we are in doubt as the collegium, we go back to the chief justice of the high court and we say, “Well, this has been drawn to our notice, would you please give us a brief report on whether this is true or false?” We ask for feedback, we share that feedback with the government. The process of appointing judges is a very broad-based collaborative process, in which no one arm of the state has a decisive role to play. And just to give you one example, one of our greatest judges, Justice Krishna Iyer, who came out with some of the finest judgments, had a political background. My own experience has been that judges who have appeared for a cross-section of diverse political views across the spectrum have turned out to be amazing judges.”
A point of contention?
The collegium, which comprises the five senior-most justices of the Supreme Court including the Chief Justice of India decide on the appointments and transfers of judges to the top court and the High Courts. These recommendations must be approved by the Union government. The appointment of judges has become a point of contention between the collegium and the Union government in recent years.
On November 7, the Supreme Court had expressed its disapproval of the ‘pick and choose’ method being adopted by the central government as they indulge in selectively accepting names from the collegium resolutions for judges’ appointments, impacting the whole seniority of the judges under consideration. While hearing the writ petition filed by the non-profit Centre for Public Interest Litigation raising the issue of delay in judicial appointments, the Supreme Court bench of Justices Sanjay Kishan Kaul and Sudhanshu Dhulia had eprecated the Centre’s practice of ‘segregating’ collegium recommendations, which resulted in the inter-se seniority of judicial nominees being disturbed.
Justice Kaul, addressing the Attorney General for India R Venkataramani had said, “This selective business…This pick-and-choose must stop,” as per a report of LiveLaw.
In January 2023, the Union government had also ignored a specific recommendation put forth by the collegium regarding the appointment of R. John Sathyan first, an advocate whose candidature was earlier opposed by the Ministry. His judgeship was also for Madras High Court.
While re-iterating his name, the Supreme Court collegium had observed that an advocate would not become unsuitable for judgeship merely because he had shared on the social media a news article critical of the Prime Minister. The opinion had been expressed in the context of the suicide of a medical student after her reported inability to secure a seat in medical college, despite scoring well in examinations.
Ironically, R. John Sathyan’s name still remains pending with the Union government, while Justice Gowri now has seniority over him. The conduct of the Union government is sending a clear message that the present regime will pick and choose among those approved by the collegium, in a manner informed by its own rigid political preferences.
The other pending reiterated names include advocate Saurabh Kirpal for the Delhi High Court, an openly gay advocate, whose candidature has been deferred by the Centre five times. The recommendation of advocates Amitesh Banerjee and Sakya Sen for the Calcutta High Court also remain pending.
Accused of severe attacks on fundamental freedoms, the Modi regime’s contempt of the institution of the judiciary and it’s inalienable independence, bode ill for Indian democracy.
Related:
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