Appointments and transfers of judges in the constitutional courts is a participatory consultative process between the Supreme Court and the government. But there is an increasing trend, if not a disturbing pattern, of the government unilaterally delaying or segregating names recommended by the Supreme Court Collegium. While the need of the hour is to fill up judicial vacancies for effective justice administration, the primacy of the Collegium to recommend names for elevation to the Supreme Court and appointments and transfers in high courts, is affected by what some legal experts term as “cherry-picking” on the part of the executive.
Constant segregation and delays
Justice Muralidhar’s transfer as the Chief Justice of the Madras High Court was recommended by the Collegium to the government along with the name of Jammu and Kashmir High Court Chief Justice Pankaj Mithal on September 28. Both names were proposed jointly in a single batch. However, the government chose to notify Justice Mithal’s transfer to the Rajasthan High Court while keeping an ominous silence about Justice Muralidhar. The split in the batch had a ripple effect. The name of Justice Jaswant Singh, who was recommended to replace Justice Muralidhar as the Orissa High Court Chief Justice, was also segregated. Justice Singh’s recommendation lies in limbo with the government while the other judges recommended by the Collegium in the same batch for elevation — Justice Prasanna Bhalachandra Varale of the Bombay High Court and Justice Ali Mohammad Magrey of the Jammu & Kashmir High Court — were notified by the government on October 11. The juggling of names at the government’s end not only affects the primacy of the Collegium, but also impacts the seniority of a judge and even his/her prospects to be appointed to the Supreme Court. But Justice Muralidhar’s case is not the first such incident. In the past, the government has unilaterally segregated names recommended by the Collegium. In 2014, the Collegium headed by then Chief Justice of India (CJI) R. M. Lodha had recommended former Solicitor General Gopal Subramanium for direct appointment to the Supreme Court Bench. The government turned down Mr. Subramanium’s name while clearing the names of senior advocates such as Rohinton F. Nariman, Justices Arun Kumar Mishra and A.K. Goel. Chief Justice Lodha, in an interview to The Hindu, said the collegium was the “final arbiter of judicial appointments”. He said segregation with the Collegium’s list amounted to “tinkering”. He had maintained that prior consultation with the CJI before segregation was the “integral component of the primacy of the Collegium”.Chief Justice Lodha had shot off a scathing letter to the government condemning its action to unilaterally segregate names jointly recommended by the collegium without consulting the Chief Justice of India. But four years later, in 2018, the government repeated its act, this time with the recommendation of the Collegium led by Chief Justice Dipak Misra to elevate Himachal Pradesh Chief Justice K.M. Joseph to the Supreme Court. The Misra Collegium had jointly recommended Justice Joseph along with Justice Indu Malhotra. After a hiatus of three months, the government de-linked both names to clear Justice Malhotra’s name. She was sworn in as Supreme Court judge while Justice Joseph’s name was returned by the government on the grounds that he was too junior among High Court judges to be elevated to the Supreme Court. The Supreme Court Collegium resolution had described Justice Joseph as “eminently suitable”. When the government was forced to clear Justice Joseph’s name after the Collegium reiterated it, it superseded the Collegium to alter his seniority to make him junior to Justices Indira Banerjee and Vineet Saran in the apex court.
The mandate of the Collegium
The Three Judges Case establishes the primacy of the Collegium, led by the CJI, in making judicial appointments. ‘Chief Justice of India’ here means the collective opinion of the Collegium. Giving primacy meant the ‘CJI’ was best equipped to know and assess the worth of a candidate for appointment as a superior judge. The executive had at best the power to act as a “mere check on the exercise of power by the Chief Justice of India, to achieve the constitutional purpose”. Thus, the executive element in the appointment process was reduced to the minimum and any political influence was eliminated. It was for this reason that the word ‘consultation’ instead of ‘concurrence’ was used in the Constitution. The Three Judges Case also recognised the significance of maintaining the “inter-se seniority amongst judges in High Courts and their combined seniority on an all-India basis” keeping their future prospects in mind. Inter-se seniority among judges in the Supreme Court, based on the date of appointment, was seen of similar significance. The Constitution Bench had held that “unless there be any strong cogent reason to justify a departure, that order of seniority must be maintained between them while making their appointment to the Supreme Court”.The way out of the imbroglio would be to introduce checks through the Memorandum of Procedure (MoP) against unilateral segregation by the government. A new MoP could also bring in a clause to clear names for judicial appointments within a reasonable time to avoid delay.