How the transfer of HC judge kept in limbo may trigger a domino effect on collegium’s proposals
NEW DELHI: If there is a judge in the higher judiciary that holds the key to a spate of collegium’s recommendations, it is justice T Raja. With justice Raja sitting tight in the Madras high court even though the collegium first proposed his transfer on November 16, 2022, the judges’ selection body in the Supreme Court has found itself constrained to keep going back to the drawing board, permutate and review its recommendations in the last six months. And it may not be over yet.
Last Wednesday, the collegium publicised a set of six recommendations for the appointment of high court chief justices and one statement separately on justice Raja. The judge is currently the acting chief justice of the Madras high court, by virtue of being the most senior judge there and the government not processing the collegium’s recommendation.
Of the six recommendations by the collegium pertaining to high court chief justices, three have an imprint of the Union government’s unwavering aversion to transfer justice Raja out of the Madras high court.
The collegium on Wednesday recalled its almost seven-monthold recommendation to transfer Orissa high court chief justice S Muralidhar as the chief justice of the Madras high court, citing an inordinate delay and no response from the Centre.
In a resolution, the collegium lamented that its September 28 recommendation to transfer justice Muralidhar has remained pending with the Government of India since then “without any response” even as the judge is slated to retire on August 7.
In his place, the collegium, comprising Chief Justice of India Dhananjaya Y Chandrachud, and justices Sanjay Kishan Kaul, KM Joseph, Ajay Rastogi and MR Shah, sent a fresh proposal for appointment of Bombay high court judge SV Gangapurwala as the Madras high court chief justice. The collegium emphasised that the Madras high court has been functioning without a full-time chief justice for more than six months.
Coupled with the recommendation to transfer Bombay high court’s acting chief justice Gangapurwala, the collegium proposed the appointment of the next most senior judge of the Bombay high court judge, RD Dhanuka, as the chief justice of the same high court.
At the same time, through a separate resolution, the collewala gium urged the Centre to transfer justice Raja to the Rajasthan high court “at the earliest” since his request for a reconsideration stood rejected on November 24.
“The collegium resolves that the transfer of Justice T Raja as a judge of the High Court of Rajasthan be effectuated at the earliest. His continuation even as a Judge of the Madras High Court cannot be an impediment to the appointment of Justice SV Gangapurwala as the Chief Justice of the Madras High Court,” said the resolution.
Even as the collegium has revised its proposal for the appointment of the Madras high court chief justice, if justice Raja is not moved out, many collegium’s recommendations run the risk of being an exercise in futility.
There has been a veritable musical chair for chief justices in the high courts.
Justice Raja is set to retire on May 24 while justice Dhanuka, who is proposed to be made the chief justice of the Bombay high court after the transfer of justice Gangapurwala from the same high court, has to retire on May 30 — less than a week later.
If justice Raja’s transfer to the Rajasthan high court is not notified by the government, it is unlikely that the Centre will process justice Gangapurwala’s appointment as the Madras high court chief justice since the latter is junior to justice Raja.
Justice Raja was appointed as a high court judge in March 2009 whereas justice Gangapurwas appointed a year later. The convention and the history of judicial appointment would testify that the senior most judge is usually the chief justice of a constitutional court.
Thus, if justice Raja is not moved out, justice Gangapurwala’s appointment as the Madras high court chief justice is expected to remain in limbo. And if justice Gangapurwala is not transferred to the Madras high court, justice Dhanuka cannot be appointed as the chief justice of the Bombay high court — all are stuck in a traffic jam.
While the government withholds the transfer of justice Raja from the Madras high court, the judge has earned the distinction of being the longest-serving judge from the state to remain at the helm of the judiciary there in at least 25 years.
He assumed charge as the acting chief justice on September 22, 2022, and continues till date — for more than 200 days, even as the memorandum of procedure (MoP) that guides the appointment of judges to the constitutional courts requires a non-native judge to become the chief justice of a state high court.
The Supreme Court collegium puts out some basic reasons which serve as a rationale for the appointments or transfers that they recommend, but the existing MoP does not bind the central government to a timeline to respond — it can simply sit on the collegium’s recommendations.
Since all judges have a retirement clock running against them (high court judges retire at 62), the Centre has a novel way of saying no — by not saying anything at all and push the judges towards their retirement, as was most recently done in the case of justice Sabina of the Himachal Pradesh high court.
She retired on Wednesday last week without assuming the chief justice’s office as the government did not notify the collegium’s February recommendation to appoint her as the chief justice of Himachal Pradesh high court.
Another such judge who barely made it to the coveted office of chief justice, albeit for just 10 days, was justice Jaswant Singh.
Justice Singh was supposed to become the chief justice of Orissa high court after the transfer of justice Muralidhar according to the September 2022 recommendation by the collegium. However, after the government did not process justice Muralidhar’s transfer — while justice Raja continued in Madras — the collegium revised its recommendation in January and made a fresh proposal to transfer Justice Singh to the Tripura high court in view of his retirement clock; he retired in February.