The Supreme Court Collegium Should Function Transparently Avoiding Opaqueness!

  • People in the know would agree that the higher judiciary by virtue of it being under the spotlight owing to the Constitution mandated charter of duties finds itself hitting headlines mostly for right reasons, and sometimes for wrong reasons as well. The number of cases gaining Himalayan proportions, lack of adequate appointments in all levels of the judiciary, millions of meandering cases waiting for disposal, and of course, failing to arrive at a consensus between the government and the Supreme Court collegium regarding appointments to higher judiciary are always issues drawing considerable attention.

PC: Dr. Balram K Gupta

  • Even transfers of judges sometimes lead to sensationalism piquing the interests of fellow countrymen who hold the SC in very high esteem. One such recent incident is drawing enough attention yet again. The transfer of Chief Justice Sanjib Banerjee from Madras high court to the much smaller Meghalaya High Court cannot but raise some questions for the Supreme Court collegium. As if on cue, the Chennai lawyers have raised a valid point questioning as to what was the rationale behind transferring a Chief Justice who helmed the HC with a sanctioned strength of 75 and was reportedly exemplary in case of disposal, despite the pandemic, to a small HC with just four judges?
  • Such a move is initiated when there is growing case pendency in HCs is bound to invoke discomfiting retort from the intelligentsia and the like. It only adds fuel to the fire with no ready or justifiable answers forthcoming leading to unfounded conjectures being bandied about by the comprehending lot. All this speculation is unhelpful to judicial morale and is yet another reminder of the collegium system’s opaqueness. Further, among theories being discussed is whether CJ Banerjee’s critique of the Election Commission’s conduct of assembly polls amid the Covid second wave was a factor in his transfer.

PC: Gaurav Shukla

  • More substantively, the Madras Bar Association has passed a resolution asking whether norms relating to the transfer of HC judges in the Memorandum of Procedure were followed. For the uninitiated, para 25.2 of MoP requires the Chief Justice of India to ascertain the views of SC judges knowledgeable of the HC concerned. Further, para 25.3 directs the CJI and four senior-most SC judges to seek the to-be-transferred judge’s response to the proposal and preferred choices of destination HC. Mind you, while these norms have to be respected, the SC collegium may indeed have genuine reasons for transferring CJ Banerjee. Needless to mention, without transparency there are institutional risks, evident in how the outcry by advocates has embarrassed the upper judiciary.
  • While incumbent CJI has frequently articulated the importance of safeguarding the judiciary’s independence, Madras HC lawyers argue that the Banerjee episode affects the functional autonomy of HCs, and rightly so. If you recollect, the SC bench while striking down the National Judicial Appointments Commission had admitted to flaws in the collegium system even while reviving it. However, six years have passed without consensus on a new MoP enshrining SC’s promise of transparency in collegium functioning. Make no mistake, the frequent controversies dogging judicial appointments all go back to this yet unfinished agenda. Some concrete action to usher in transparency should be initiated expeditiously.

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Krishna MV
Krishna is a Post Graduate with specialization in English Literature and Human Resource Management, respectively. Having served the Indian Air Force with distinction for 16 years, Armed Forces background definitely played a very major role in shaping as to who & what he is right now. Presently, he is employed as The Administrator of a well known educational institute in Bangalore. He is passionate about sharing thoughts by writing articles on the current affairs / topics with insightful dissection and offering counter / alternate views thrown in for good measure. Also, passionate about Cricket, Music – especially vintage Kannada & Hindi film songs, reading – non-fictional & Self-Help Books, and of course, fitness without compromising on the culinary pleasures.