'Unfair' : Supreme Court On Allegation Of Bias Against Somasekhar Sundaresan Over Appearance For Adani Group
During the hearing of the Adani-Hindenburg matter, the Supreme Court on Friday (November 24) expressed disapproval of the allegations made by a petitioner against the impartiality of the members of the Expert Committee constituted by the Court.Chief Justice of India DY Chandrachud, the presiding judge of the bench, went to the extent of terming the allegations "unfair" and told Advocate...
During the hearing of the Adani-Hindenburg matter, the Supreme Court on Friday (November 24) expressed disapproval of the allegations made by a petitioner against the impartiality of the members of the Expert Committee constituted by the Court.
Chief Justice of India DY Chandrachud, the presiding judge of the bench, went to the extent of terming the allegations "unfair" and told Advocate Prashant Bhushan that such statements should be made with a sense of responsibility.
The expert committee was constituted by the Court on March 2 to examine if there was any regulatory failure on the part of the Securities and Exchange Board of India in relation to the Adani-Hindenburg issue. The Committee was also asked to make suggestions to improve the regulatory framework. The committee consisted of the following members– i) Mr OP Bhatt, ii) Justice JP Devadhar (former Bombay HC judge), iii) Mr KV Kamath, iv) Mr Nandan Nilekani and v) Mr Somashekhar Sundaresan and was headed by former SC judge Justice (Retd.) Abhay Manohar Sapre. In May, the Committee submitted a preliminary report, prima facie ruling out failure on the part of the SEBI and made certain suggestions to improve the regulatory framework.
One of the petitioners in the case, Anamika Jaiswal, filed an affidavit in September alleging conflict of interest on the part of some of the expert committee members, due to their association with Adani group companies.
On Friday, Advocate Prashant Bhushan, for the petitioner, submitted that OP Bhatt was a Chairman of Greenko group which had associations with Adani group companies. He also questioned the role of Advocate Somashekhar Sundaresan by saying that he has appeared for Adani group before various fora including the SEBI Board.
CJI Chandrachud questioned the allegation, pointing out that the petitioner is citing an appearance made by Sundaresan way back in 2006.
"Mr Bhushan, let's be fair. He was a counsel in 2006. It is not as if he was an in-house counsel of the Adani group or a retainer. Lawyers make appearances in various cases. And you cite an appearance made by him 17 years ago! There has to be some responsibility about allegations you make."
Bhushan then stated that he had also been on many SEBI committees.
The CJI then stated that being on SEBI committees should not disqualify him, emphasising that Sundaresan's participation in the financial sector law reform committee was at the behest of the previous government. He said–
"So? That disqualifies him? He was on the financial sector law reform committee of the previous government!"
Solicitor General of India Tushar Mehta joined the discussion and stated that Sundaresan had in fact been critical of SEBI, suggesting that his involvement should not be perceived as compromising his impartiality. He added–
"Principally, I would earnestly request for these kind of allegations to stop. They were selected by the court". The SG also underscored that the committee was functioning under the leadership of a retired Supreme Court judge.
"Mr Bhushan, this is a bit unfair. Because that way people will stop being in committees we appoint. If we wanted to have retired High Court judges we would have. But we wanted domain experts. We wanted a more robust analysis..," CJI said.
Bhushan said that though the application only cited one appearance made by Sundaresan in 2006, he has in fact made many other appearances for the Adani group.
At this juncture, the CJI orally remarked–
"Why should we take these unsubstantiated allegations?...By that logic, no lawyer who has appeared for an accused should become a High Court judge!...It is a 2006 appearance and you say something in 2023."
Bhushan clarified that the petitioner filed an affidavit in May about Sundaresan's conflict but did not consider it significant enough to call for the committee's reconstitution until learning about OP Bhat's involvement. The petitioners maintained that committee members should have disclosed potential conflicts to the court for a transparent decision-making process. After an elaborate hearing, the bench reserved judgment in the matter.
It may be noted that yesterday, the Central Government notified the appointment of Advocate Somasekhar Sundaresan as an additional judge at the Bombay High Court, almost ten months after the Supreme Court collegium reiterated his name. It was in February 2022 that the Collegium recommended his name for the first time. In November 2022, the Centre objected to his name, citing certain views expressed by him in the social media on sub judice matter. However, in January 2023, reiterating Advocate Somasekhar Sundaresan’s name, the Collegium said-
“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 manner in which the candidate has expressed his views does not justify the inference that he is a “highly biased opinionated person” or that he has been “selectively critical on the social media on the important policies, initiatives and directions of the Government” (as indicated in the objections of Department of Justice) nor is there any material to indicate that the expressions used by the candidate are suggestive of his links with any political party with strong ideological leanings."
Case Title: Vishal Tiwari v. Union of India & Ors. | Writ Petition (Civil) No. 162 of 2023 and other connected matters