This article is written by M.S.Bushra Tungekar from the University of Mumbai Law Academy. The author in this article discusses the procedure of the supreme court collegium and the arbitrariness in the transfer of high court judges.

Introduction

Judiciary is an important pillar of constitutional democracy in India. The citizens of India place immense trust and faith in the Indian judiciary. Judiciary is the upholder of law and the protector of the rights of the citizens. It is of utmost importance that the individuals sitting on the high chair are efficient and not biased.

The Constitution of India confers the power for the appointment and transfer of the judges. The Constitution restricts the power of the legislature when it comes to decision making with respect to appointment, removal, tenure, salaries, and transfer of high court judges. The underlying object in these provisions of the Constitution regarding high courts in states is judicial independence. These transfers are not out of the ordinary in India. However, at times some transfers cast doubt on judicial independence. 

The midnight transfer controversy 

• In the month of February 2020, out of the routine transfer notification of Justice Muralidhar raised several questions in the public domain. 
• The transfer notification was issued by the Central Government around midnight. 
• The hasty transfer notification in the middle of the night brought the arbitrary nature of the Supreme Court collegium under the public radar. The transfer saw outrage by the media as well by lawyers. 
• The Delhi Bar Association also protested against the transfer. The transfer was called to be a punitive action. What gave birth to the controversy was that the transfer notification was issued by the Central Government hours after he reprimanded Delhi police over their lack of action against BJP politicians who engaged in hate speech during the Delhi Riots.
• Justice Muralidhar on February 26, 2020, held an at-home hearing of public interest litigation (PIL) at around 12:30 am. The petition was regarding the safe passage of ambulances carrying the injured victims of the Delhi Riots. 
• Due to the situation in Delhi and the case of emergency the registry had accepted the case late. Normally, such a case would have been sent to the Chief Justice of High court, but since the CJ of Delhi High court was on leave the case was sent to Justice Muralidhar.
• On the same day (February 26th) there was another petition filed against Anurag Thakur, Kapil Mishra, and Parvesh Verma for indulging in hate speech that led to incidents of violence in Delhi. 
• Justice Muralidhar on watching the clips played in the court of the speech delivered by Kapil Mishra was furious and reprimanded the Delhi police. 
• Delhi police had stated that they did not see any such clips. The bench comprising Justice Muralidhar and Justice Talwant Singh directed the police to register an F.I.R against the BJP leader for alleged hate speech. 
• The bench further directed the formation of a Special Investigation Team, directed the Delhi police to ensure safe transit of the ambulances.
• However, before the matter could be heard any further the transfer notification was issued at midnight. 
• The transfer was not seen as a routine transfer due to the sheer hurriedness and there was no mention of a deadline. Usually, the judges are given a 15-day deadline to officially hand over the charge before moving. But no such deadline was mentioned in the midnight transfer.
• The midnight transfer was defended by the law minister of India as a routine transfer. It was said that the decision had already been taken on 12th February. 
• The Supreme Court Collegium did not state any reasons for the transfer.
• The midnight transfer in the middle of hearing a sensitive case where the lives of the citizens were at risk was seemed to be done with a mala fide intention.
• Justice Muralidhar since then has assumed the Punjab & Haryana High Court.
• This was not the first instance wherein eyebrows were raised at the transfer of a High court Judge. Incidents of the Justices resigning to protest the transfers. A similar incident took place last year as well when Chief Justice V K Tahilramani (Madras High Court) was arbitrarily transferred to Meghalaya High court with one year left to service. Due to the unusual transfer, Justice V K Tahilramani had to resign.

Legal provisions

Constitutional provisions 

• Article 222 of the Constitution of India deals with the procedure relating transfer of judges from one high court to another.
• Article 222 empowers the President to transfer a judge from one high court to another.
• This transfer however must be done in consultation with the Chief Justice of India.
• The judge who is being transferred is also entitled to receive a compensatory allowance.

The Supreme Court collegium system 

The Collegium system

The Supreme Court collegium is a system looking after the appointments, elevations of lawyers, and judges to the supreme court and high courts in India. Not only that the system also looks after the transfer of judges from one court to another.

The collegium consists of the Chief Justice of India and 4 senior-most judges of the Supreme Court of India. There is no provision in the Constitution providing for a formation of a collegium. Therefore the constitution of the collegium system is an innovation of the Supreme Court. The system was introduced under the 99th Amendment of the Indian Constitution.

Inception of the collegium system

In the 1970s when the government moved away from the established practice of appointing the Chief Justice of India based on seniority, the appointments were made superseding the judges and there were talks of mass transfer of the high court judges. Judicial independence conferred by the Constitution was deemed to be under threat.

The procedure followed by the collegium system

• The Chief Justice of India and the Supreme Court judges are appointed by the President according to the powers conferred by the Constitution.
• The judges of the high courts are recommended on the proposal of the Chief Justice of India.
• The Chief Justice of India shall consult the senior-most judge of the high court to which the recommended candidate belongs. 
• The CJI shall also consult the other members of the collegium.
• After the consultation, the recommendations are then forwarded to the law minister who then further passes on the recommendations to the Prime Minister who then advises the President concerning the transfer.
• On approval of the transfer, the said order is issued by notification on the official gazette. 
• The Supreme Court collegium makes the decision related to the elevation of the high court judges.
• The collegium also prescribes for the transfer of judges from high courts.
• In case of a transfer of Chief Justice of a high court, his or her replacement is also to be appointed.
• The opinion of the Chief Justice is determinative in matters concerning transfers. Not only that the consent of the judges being transferred is also not necessary.
• However, the transfers must be made in the interest of the public at large and for the furtherance of the administration of Justice.

Criticism against collegium

There have been many instances in the past which have raised doubts, rage, and controversies highlighting the arbitrariness of the Supreme Court collegium in the transfer of the high court judges. Transfers should be made only for the purpose of public interest or for the furtherance of the administration of justice. On numerous occasions, transfers such as the transfer of Justice Muralidhar, transfer of Chief Justice of Madras high court, V K Tahilramani have raised questions that what kind of purpose did such transfers fulfill? The collegium is criticized on the following grounds: 

Autocratic

The collegium is not a constitutional body, it is the creation by the supreme court. The constitution of the supreme court collegium can be perceived as an act of the judiciary to control the appointments and transfer in the judiciary.

Monopoly in appointments

The essence of democracy is under a threat as under the collegium system a judge appoints a judge.

Fear of rampant nepotism 

The collegium has been under criticism by the Law Commission of India. The Law Commission has expressed their concerns regarding incorrect appointments which may be based on past favors or nepotism.

Not always based on merit

The system recommends the appointment of judges without conducting the due diligence of the available talents in the legal system. The system fails to ascertain the merit of the candidates.

Lack of transparency

The Supreme Court collegium system is very opaque. There are no formal written down procedures or rules or any sort of criteria that the collegium follows while appointing, elevating, and transferring the judges. There are selective publications by the collegium. The public has no knowledge as to the frequency of the meeting of the collegium or what norms are followed by the collegium. 

Appointment failures

The collegium failed to appoint judges as per the vacancies. 

Judicial interpretations

The 3 judge case and the landmark verdicts associated with them lead to the constitution of the Supreme Court collegium.

The first judge case

In the case of S.P. Gupta v. Union Of India, AIR1982 SC 149, the seven judged constitutional bench was presented with a question of whether the president of India was bound by the advice of the Chief Justice of India. 

The Honorable Supreme Court by a 4:3 majority held that the word ‘consultation’ used in the Constitution does not mean “concurrence.” The court observed that the Chief Justice even after consulting with the officials, his decision may or may not be in unanimity with the officials. The opinion of the Chief Justice cannot be held to be binding on the executive. 

The second judge case

• In Supreme Court Advocates-on-Record Association v. Union of India, AIR 1994 SC 268, the main issues raised before the Supreme Court for consideration were whether the opinion of the Chief Justice of India regarding the matters concerning appointment and transfer of judges (both Supreme and High Court) is entitled to primacy?
• To examine this issue and to reconsider the judgment passed in the first judge case, the Honorable Supreme Court constituted a nine-judged constitutional bench. This bench by 7:2 majority overruled the decision of the first judge case. The court, in this case, held that the Chief Justice of India is entitled to primacy in matters relating to appointment and transfer of the Supreme Court as well as the high court judges. The court further observed that in case of a conflict of opinions between the CJI and the president, the opinion of the CJI would have the primacy not only that the opinion of the Chief Justice of India would be crucial in the decision making. 

• The second judge case gave birth to the Supreme Court’s collegium. The bench passed a unanimous decision on the constitution of a collegium system to overlook the appointment, elevation, and transfer of the judges.

The third judge case 

In Re Presidential Reference AIR 1999 SC 1, a Presidential reference was issued in the year 1998 by the then President K.R. Narayanan regarding the word “consultation” used in the Constitution. The debate was whether the consultation of the CJI was sufficient or was there a need for consulting other judges as well.

The nine-judge bench held that merely the singular opinion of the Chief Justice of India was not sufficient. The court in this decision laid down the guidelines for the collegium system. The court further developed the collegium system to comprise four senior-most judges along with the Chief Justice of India.

National Judicial Appointments Commission (NJAC)

The government of India felt that the Supreme Court collegium lacked transparency was opaque and also lacked accountability. Therefore, the government via the Ninety-Ninth Constitutional Amendment brought the National Judicial Appointments Commission (NJAC) into existence. 

The aim of NJAC was to overcome the drawbacks of the collegium. It provided that the commission would comprise of the chief justice of India, two senior-most supreme court judges as members, union law minister as ex officio officers, two eminent persons who were to be nominated by a committee (comprising of the prime minister, the leader of the opposition and the chief justice of India).

However, the constitutionality of the NJAC was questioned. The Hon’ble Supreme Court in the case of Supreme Court Advocates on Records Association v. Union of India by a 4:1 majority declared NJAC to be unconstitutional. The reasons were independence of the judiciary and separation of the power conferred by the Constitution. 

Conclusion 

The Supreme Court collegium system has its drawbacks with the lack of transparency and accountability but these drawbacks can be overcome by ensuring mechanisms that provide for transparency of systems. Having a collegium in place in spite of its drawbacks is beneficial for the judiciary to maintain its independence. Judiciary is the most important organ and it is critical for democracy that the judiciary is free from any external or internal influences. It is independent and impartial. The faith of the citizens in the judiciary must be regained. The transfer of the judges must not be arbitrary and mentioning the reasons for transfer can be a step toward providing a clear picture to the public. 

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