The Supreme Court collegium, in a resolution published on Thursday, backed the right to free speech of an advocate recommended for Bombay High Court judgeship after the Centre objected that he was “selectively” critical of the government on social media.
“All citizens have the right to free speech and expression under Article 19(1)(a) of the Constitution. 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 led by Chief Justice of India D.Y. Chandrachud stated in its resolution.
The government had deduced that advocate Somasekhar Sundaresan was a “highly biased opinionated person” from his social media posts.
The Department of Justice, while returning his file, had accused Mr. Sundaresan of being “selectively critical on social media on the important policies, initiatives and directions of the government”.
Responding to the government’s objection, the collegium said “there is no material to indicate that the expressions used by the candidate are suggestive of his links with any political party with strong ideological leanings”.
The collegium, also comprising Justices Sanjay Kishan Kaul and K.M. Joseph, listed for the government’s benefit the qualities required of a candidate for judgeship, including honesty, ability, high order of emotional stability, serenity, legal soundness, among others.
‘Would be an asset’
In fact, the collegium drew the Centre’s attention to the fact that Mr. Sundaresan was specialised in commercial law and would be an asset to the Bombay High Court Bench where there was a large volume of commercial and securities’ related cases.
Besides, the collegium, reiterating the lawyer’s name for judgeship, said the issues discussed by Mr. Sundaresan were part of public debate in the media. The lawyer was recommended by the collegium in February 2022. The Department of Justice had returned his file on November 25, 2022.
The collegium also reiterated the names of advocates Amitesh Banerjee and Sakya Sen for Calcutta High Court judgeships. It had originally recommended these two names four years ago in December 2018. Their files had been returned by the government earlier in 2021. The collegium had reiterated its recommendations the same year. The Justice Department however sent the files back again on November 25, 2022 without any “fresh material or ground” for its objection.
The collegium’s decision to publish a slew of detailed resolutions, including one overriding the government’s objections about openly gay lawyer Saurabh Kirpal, sends a strong message to the government which has accused the collegium system of opacity.
The reiterations, which cover recommendations made to three major High Courts of Delhi, Bombay and Calcutta, signal that the judges have no intention to back down under the barrage of barbs from even high constitutional authorities such as Vice-President Jagdeep Dhankar, Lok Sabha Speaker Om Birla or Law Minister Kiren Rijiju.
On January 6, a Bench led by Justice Kaul had warned the government about sending back names already reiterated for appointment by the collegium.
The caution from the court came after the government had returned 22 names the collegium had either recommended or reiterated repeatedly. The court had disclosed that the government had even sent its own list of names for clearance by the collegium.
“Sending back of reiterated names is a matter of concern. If the collegium reiterates names, in the present scenario, nothing can prevent their appointment as judges,” Justice Kaul had warned Attorney General R. Venkataramani.