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Supreme Court Collegium backed free speech for lawyers

  • Published
    20th Jan, 2023

The Supreme Court collegium backed the right to free speech of an advocate recommended for Bombay High Court judgeship after the Centre objected to his critical comments on social media.

About the Case:

  • Responding to the government’s objection, the collegium has mentioned that 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.
  • Also, the collegium argued that the listed qualities required of a candidate for a judgeship, include honesty, ability, a high order of emotional stability, serenity, legal soundness, among others and not loyalty to a political party.

Right to freedom of speech:

  • India does not have a formal legal framework for dealing with hate speech.
  • India prohibits hate speech through several sections of the Indian Penal Code, the Code of Criminal Procedure, and other laws which put limitations on the freedom of expression.
  • Constitutionally, Article 19 gives all citizens the right to freedom of speech and expression but the said freedom of expression is subject to "reasonable restrictions" for preserving inter alia "public order, decency or morality".
The extent of free speech available to public functionaries:
  • Speech must be exercised with consciousness: Every citizen of India must consciously be restrained in speech, and exercise the right to freedom of speech and expression under Article 19(1) (a)only in the sense that it was intended by the framers of the Constitution, to be exercised.
  • Freedom of speech vs. right to dignity: The content of Article 19(1)(a) which does not vest with citizens unbridled liberty to utter statements which are vitriolic, derogatory, unwarranted, have no redeeming purpose and which, in no way amount to the communication of ideas.

Criteria to become a Judge:

  • In order to be appointed as a Judge of the Supreme Court, a person must be;
    • A citizen of India and
    • For at least five years, a Judge of a High Court or of two or more such Courts in succession, or
    • An Advocate of a High Court or of two or more such Courts in succession for at least 10 years or
    • He/she must be, in the opinion of the President, a distinguished jurist.
  • Provisions exist for the appointment of a Judge of a High Court as an Ad-hoc Judge of the Supreme Court and for retired Judges of the Supreme Court or High Courts to sit and act as Judges of that Court.

Process of Removal:

  • A Judge of the Supreme Court cannot be removed from office except by an order of the President passed after an address in each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of members present and voting, and presented to the President in the same Session for such removal on the ground of proved misbehaviour or incapacity.
  • A person who has been a Judge of the Supreme Court is debarred from practising in any court of law or before any other authority in India.
  • Supreme Court Rules, 1966 and Supreme Court Rules 2013 are framed under Article 145 of the Constitution to regulate the practice and procedure of the Supreme Court.

Who appoints the judges in the Court of law?

  • The Judges of the higher judiciary are appointed only through the collegium system, and the government has a role only after names have been decided by the collegium.
  • Names recommended for appointment by a High Court collegium reach the government only after approval by the CJI and the Supreme Court collegium.
  • Sometimes the government delays making the appointments, especially in cases where the government is perceived to be unhappy with one or more judges recommended for appointment by the collegium.

Appointment Procedures:

For Judges of Apex Court

For High Court CJ

  • For other judges of the SC, the proposal is initiated by the CJI.
  • The CJI consults the rest of the Collegium members, as well as the senior-most judge of the court hailing from the High Court to which the recommended person belongs.
  • The consultees must record their opinions in writing and it should form part of the file.
  • The Collegium sends the recommendation to the Law Minister, who forwards it to the Prime Minister to advise the President.
  • High Court judges are recommended by a Collegium comprising the CJI and two senior-most judges.
  • The proposal, however, is initiated by the outgoing Chief Justice of the High Court concerned in consultation with two senior-most colleagues.
  • The recommendation is sent to the Chief Minister, who advises the Governor to send the proposal to the Union Law Minister.
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