The SC collegium must realise that it’s supreme in the present system

How the transfer of Justice Muralidhar pans out will tell us about the strength of the collegium system

The judicial collegium, which comprises the Chief Justice of India and the four senior-most judges of the Supreme Court (SC), has disappointed us yet again by recommending the transfer of Justice S Muralidhar, one of the finest judges of the country, known for his independent views, as a judge of the Punjab and Haryana High Court. On Wednesday, the Centre notified the transfer.

It can be argued that the transfer is intended for his own good and that Justice Muralidhar will eventually take over as Chief Justice in Chandigarh, once the current Chief Justice, Ravi Shanker Jha, is elevated to the Supreme Court (SC).

It is assumed that once that happens, Justice Muralidhar as the senior-most judge will take over as Acting Chief Justice until his formal orders as Chief Justice are issued.

But this begs a tricky question: Why was he not directly appointed as a Chief Justice of a high court? Supposing when his turn comes to become the Chief Justice in Chandigarh, the government goes back on his appointment? What will then the collegium do?

Will it turn weak as it did in the case of Akil Abdulhamid Kureshi (who was originally recommended as Chief Justice of Madhya Pradesh)? The then collegium headed by former Chief Justice of India Ranjan Gogoi transferred him to Tripura when the government demurred. Or will it dig in its heels and say that since there is no Memorandum of Procedure in place to decide on such issues, the collegium will continue to decide appointments?

The law is clear on the primacy of the collegium. In fact, the government has little role in the process of appointment and transfer of judges as has been held in Supreme Court Advocates-on-record Association and Another vs. Union of India (popularly known as the Second Judges’ Case) – Writ Petition (Civil) No. 1303 of 1987: “It has been indicated that the judiciary being best suited and having the best opportunity to assess the true worth of the candidates, the constitutional purpose of selecting the best available men for appointment as superior Judges is best served by ascribing to the judiciary, as a consultee, a more significant role in the process of appointment. The only question is of the extent of such significance and the true meaning of the primacy of the role of the Chief Justice of India in this context,” that judgment said.

It added: “A homogenous mixture, which accords with the constitutional purpose and its ethos, indicates that it is the opinion of the judiciary ‘symbolised by the view of the Chief Justice of India’ which is given greater significance or primacy in the matter of appointments. In other words, the view of the Chief Justice of India is to be expressed in the consultative process as truly reflective of the opinion of the judiciary, which means that it must necessary have the element of plurality in its formation. In actual practice, this is how the Chief Justice of India does, and is expected to function, so that the final opinion expressed by him is not merely his individual opinion, but the collective opinion formed after taking into account the view of some other Judges who are traditionally associated with this function.”

I believe it is time for the collegium to reinvent and reassert itself. It is true that there may have been times under Justice Gogoi when it seemed to have turned it into an extension of the law ministry. But we now have a new collegium by Chief Justice Sharad Arvind Bobde, known to be fair and independent, and which includes Justice Rohinton Fali Nariman who is fiercely independent and one of the best judges the country has known. Sooner or later, the collegium will have to bell the cat and resist the supersession and dilution of its recommendations by the government.

The problem is that even without any ostensible say, the government can control judicial appointments. The malaise starts from the level of high courts. The High Court Collegium, comprising the Chief Justice and the two senior-most judges, are usually reluctant to recommend any person whom they know the government may object to. The ones they do decide to recommend are also in peril because the government can always block their names with inconvenient intelligence reports.

On the flip side, the collegium system itself is not infallible because we have had whimsical chief justices and strange decisions. For instance, the transfer of Justice Rajiv Shakdher to the Madras High Court from the Delhi High Court by then Chief Justice of India Tirath Singh Thakur came in for criticism by members of the bar and even some quarters in government. Justice Shakdher was finally transferred back to Delhi after 20 months — by a different Chief Justice.

Still, in balance, the collegium system has produced better judges than those in the pre-collegium era. But much depends on the collegium of the moment. Whatever its intentions may be, the collegium must realise that it is supreme in the present framework.

The Supreme Court collegium must send out a strong signal. How the transfer of Justice Muralidhar pans out in the future, will tell us about the strength of the collegium system. Let Justice Muralidhar not become another Justice Kureshi.

Rajiv Nayar is a senior advocate practicing in the

Delhi High Court The views expressed are personal