Centre Continues To Ignore Collegium Reiterations; Somasekhar Sundaresan Overlooked While Appointing 3 New Judges To Bombay HC

The Central Government yesterday notified the appointments of three advocates as additional judges of the Bombay High Court accepting the recommendations made by the Supreme Court collegium on May 2.  However, in doing so, the Centre has ignored an earlier resolution passed by the Supreme Court collegium on January 18 which reiterated the recommendation to elevate Advocate Somasekhar Sundaresan as a judge of the Bombay High Court. In that resolution, the Collegium overruled the objections raised by the Centre to Sundaresan's elevation on the basis of the critical views expressed by him on certain policies of the government.

Now, the Centre has approved the subsequently forwarded fresh recommendations even as an earlier resolution, which reiterated a previously made proposal, is pending. This has given rise to an anomalous situation, affecting the seniority of the candidate whose name was earlier recommended. It is also to be noted that as per the law, collegium reiteration is binding on the Central

The saga surrounding Sundaresan's elevation traces its origins back to October 2021, when the Collegium of the Bombay High Court proposed his name. In February 2022, the Supreme Court Collegium affirmed his candidacy for the judicial position. However, the government sought reconsideration in November 2022, citing concerns over Sundaresan's public expressions on social media pertaining to matters before the courts

On January 18 2023, reiterating Advocate Somasekhar Sundaresan’s name the collegium said,

"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"

Despite the collegium's forceful assertion that Sundaresan's views do not render him a "highly biased opinionated person" or suggest his alignment with any political party, the Centre remains unswayed. This unyielding stance by the government raises disquieting questions about its adherence to the law of the land as laid down by the Supreme Court.

The Supreme Court has in the past expressed its anguish towards Centre for sitting over proposals reiterated by the Collegium for appointment as judges. It has also criticized the practice of Centre splitting up the Collegium Resolutions by approving some names from the recommendation and withholding other names. 

Justice SK Kaul while hearing a petition against delay in approval of Collegium recommendations by the Centre had told Attorney General for India R Venkataramani,

"Sometimes when you appoint, you pick up some names from the list and not others. What you do is you effectively disrupt the seniority. When the Supreme Court collegium makes the recommendation, many factors are kept in mind."

Apart from Advocate Somasekhar Sundaresan, the name of Advocate John Sathyan for elevation as Madras High Court judge also remains pending while those whose names were recommended afterwards have been approved.  The Centre had earlier returned Sathyan's name by pointing out that he had shared an article which was critical of the Prime Minister. Rejecting the Centre's objection, the Collegium reiterated his name on January 18.  While doing so, the collegium had specifically added a statement that Sathyan should be given seniority over the new names which were recommended for elevation as Madras High Court judges. However, Advocate Sathyan's elevation as a Madras High Court judge is also hanging in the balance.

In a later resolution passed on March 21, the Supreme Court had critically commented upon the Centre's refusal to act on the reiterated proposal regarding John Sathyan.

"The Collegium is of the considered view that necessary action for the issuance of a notification for the elevation of persons who have been recommended earlier in point of time should be taken at the earliest including the name of Shri R John Sathyan which has been reiterated by this Collegium on 17 January 2023. The names which have been recommended earlier in point of time including the reiterated names ought not to be withheld or overlooked as this disturbs their seniority whereas those recommended later steal march on them. Loss of seniority of candidates recommended earlier in point of time has been noted by the Collegium and is a matter of grave concern".

Unfortunately, the Centre continues its brazen ways of ignoring the Collegium's statements.