New Delhi: In the latest instance of tussle with the judiciary, the Centre has notified appointment of three lawyers as judges to the Bombay High Court, while ignoring the proposal reiterated by the SC Collegium to elevate advocate Somasekhar Sundaresan to the same court.
The Union Ministry of Law and Justice notified the new appointments of advocates Shailesh Pramod Brahme, Firdosh Phiroze Pooniwalla, and Jitendra Shantilal Jain as judges on 12 June.
While the Supreme Court Collegium recommended the trio on 2 May, Sundaresan’s name was first recommended on 16 February, 2022. The SC Collegium led by Chief Justice of India (CJI) D.Y. Chandrachud and Justices S.K. Kaul and K.M. Joseph had reiterated the candidature through its 18 January, 2023 resolution.
These appointments come even as the SC Collegium, in a resolution released on 21 March, had expressed its “grave concern” over the Centre sitting over some names, while promptly appointing others that are recommended later.
Such selective appointments and segregation of names leads to loss of “seniority of candidates,” which, the resolution said, is not only “unfair” but also “against the settled convention.”
Headed by the CJI, the SC Collegium proposing names for High Court judges comprises two seniormost judges after the chief justice. This body is, however, expanded to become a panel of top five judges, including the CJI, to choose eligible candidates for appointment to the top court.
Appointment to the High Courts and the Supreme Court is governed as per the Memorandum of Procedure (MoP). According to this rulebook, the top court collegium sends names of chosen judges to the government, which is bound to appoint them.
If the government has any reservations to any names, it can send them back to the collegium with reasons backing its objections. But if the SC Collegium reiterates any name, the government is under obligation to notify it, in accordance with the MoP’s mandate. While the MoP outlines the procedure, it does not prescribe any timeline for the government to notify the final appointments.
In the case of the three new judges, the notification was done within 40 days of their recommendation by the SC Collegium.
While forwarding their names, the collegium had brushed aside the Intelligence Bureau’s note regarding Pooniwalla, which said the lawyer had worked under a senior advocate who wrote an article alleging there is lack of freedom of speech and expression in the last five to six years.
“The views which have been expressed by a former senior of Pooniwalla have no bearing on his own competence, ability or credentials for appointment as a Judge of the High Court of Bombay,” the collegium said in its resolution.
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Reasons for backing Sundaresan
As for Sundaresan, the SC Collegium had on 18 January noted his file’s back and forth with the government. Proposed by the Bombay High Court on 4 October, 2021, Sundaresan’s name was cleared by the SC Collegium on 16 February, 2022.
Nine months later, on 25 November, 2022, the government sought reconsideration of his name, as mentioned in the 18 January resolution, on the ground that he “aired his views in the social media on several matters which are the subject matter of consideration before the courts.”
After considering the objections, the collegium opined that Sundaresan’s views on the social media “do not furnish any foundation to infer that he is biased.”
Maintaining that all citizens have the right to free speech and expression under the Constitution, the resolution reiterated his appointment as it went on to speak of Sundaresan’s attributes and his potential as a lawyer who has specialised in commercial law.
Thereafter, on 21 March, the collegium passed another resolution that talked about withholding of names by the Centre. This observation was made while the appointment body cleared names of four district judges as judges of the Madras High Court.
The collegium noted that since the government was already seized of two earlier recommendations for the Madras HC, it should give priority to those names finalising the fresh appointments, as suggested by the former.
“Loss of seniority of candidates recommended earlier in point of time has been noted by the Collegium and it’s a matter of grave concern,” the resolution stated.
In March, a CJI-led bench nominated Sundaresan to a six-member expert committee to look into the Adani-Hindenburg case. Headed by former SC judge Justice A.M. Sapre, the committee in May gave a clean chit to market regulator SEBI on the issue of regulatory failure.
While making two recommendations for elevation to the Supreme Court in January, the SC Collegium had asked the government to ensure precedence is given to the five judges who were recommended as judges for the top court on 13 December, 2022. The collegium resolution had then specified the government must notify the two lists separately.
Five days later, the government notified the five judges that were named in the December 2022 SC resolution. On 9 February, it also gave a green signal to the appointment of two judges mentioned in the January list.
(Edited by Tony Rai)
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