By Sanjay Raman Sinha
The Supreme Court Collegium headed by the Chief Justice of India (CJI) UU Lalit is in the throes of a controversy. In an unprecedented move to appoint four new judges at the top court, the CJI has circulated a memo amongst his four fellow judges to give in writing their views for appointment of the proposed candidates.
It is reported that two members of the Supreme Court Collegium have objected to a letter sent by the CJI, seeking their views to appoint four judges to the apex court. The CJI had asked for consent of judges since the Collegium meeting scheduled for September 30 couldn’t be held due to unavailability of one of the judges.
The names recommended by the CJI to the four other members of the Collegium are Punjab and Haryana High Court Chief Justice Ravi Shankar Jha, Patna High Court Chief Justice Sanjay Karol, Manipur High Court Chief Justice PV Sanjay Kumar and Senior Advocate KV Viswanathan. As per tradition, the deliberations for appointments is done in privacy and the minutes of meetings are never divulged. However, judges may not have been putting their views in writing—a strong reason for judges to refrain from accepting the CJI’s request. The reported inner skirmish has brought to the fore the informal nature of Collegium functioning.
In fact, lack of transparency in appointment and transfer matters and lack of formal or objective norms for appointments and transfers are other major criticisms against the Collegium system. Presently, there is no process to assess if a judge who is recommended by the Collegium has any conflict of interests. The criteria of judges’ appointments and transfers is also cloaked in secrecy. This gives space to allegations of partiality and play of vested interests.
Very recently, former Chief Justice of India NV Ramana had voiced his opinion on Collegium’s functioning and said that concerns raised in different quarters, including by the government, relating to the functioning of the Supreme Court collegium system cannot be ignored or brushed aside. This comment gains importance for the fact that till recently, he was the leader of the Collegium as well the judiciary and knew its functioning first hand. It is to Justice Ramana’s credit that he had managed to get record appointments of judges (including women judges) during his tenure. However, if reports are to be believed Justice Ramana too had to battle opposition in Collegiums for appointments of certain names. But that is history. Vocal and strong-minded members of the Collegium are always welcome as they add to the rigorous functioning of the system.
It is no wonder that despite all the in-fighting, the judiciary has at the top-most level stood its ground and protected its turf fiercely. The executive has time and again tried to usurp the dominion of the judiciary.
If the spectre of the Indira Gandhi era had made the judiciary alert to its independence then the effort of the National Democratic Alliance (NDA) government to impose “legislative control” via the National Judicial Appointments Commission (NJAC) was a wake-up call. In 2014, the NDA government tried to replace the Collegium system with the National Judicial Appointments Commission (NJAC) through the 99th Constitution amendment. The Commission was to comprise the CJI, two Supreme Court judges, next in seniority to the CJI, Union law minister and two eminent jurists. Along with the Constitution Amendment Act, the National Judicial Appointments Commission Act, 2014, was also passed by the parliament to regulate the functions of the National Judicial Appointments Commission.
However, in a historical move on October 16, 2015, the Constitution bench of the Supreme Court by a 4:1 majority upheld the Collegium system and struck down the NJAC as unconstitutional. As the Supreme Court discarded the apparent thrall of executive scrutiny and control, it also tried to mend its own functioning. In fact, the verdict of Supreme Court Advocates on Record Association vs Union of India (2016) had admitted the flaws of the Collegium system. A reformation was also suggested by making the discourse of appointments public, with due deference to confidentiality.
Inspired by the reformative zeal, the then CJI Dipak Misra in 2017 began the laudable practice of publishing the details of the appointments and postings of judges of the Supreme Court and the High Courts. These were posted on the Supreme Court website and had reasons for the decisions as well. Later on, the reformatory zeal petered out and the website carried only notifications. This transition can still be noted at the website under the Collegium resolution column.
The Collegium system, as it exists today, has evolved on the basis of a series of Supreme Court judgments, now famously known as the “Three Judges Cases”. The Three Judges Cases’ verdict progressively provided the judiciary a formative matrix for organizing Collegium functioning. If the First Judges Case of 1981 gave the central government primacy in judicial appointments, then in 1993, the Second Judges Case overturned this decision and introduced the Collegium system, holding that “consultation” required “concurrence”. The verdict noted that the appointments and transfers are to be made on the basis of opinion formed by consultation of the CJI with the two senior-most judges of the Supreme Court. In 1998, in the Third Judges Case, the Supreme Court ruled that the Collegium would be a five-member body. This led to the formation of the current Collegium system.
The current Supreme Court collegium is headed by the CJI and comprises four other senior-most judges of the Court. The current Supreme Court Collegium comprises CJI UU Lalit, Justice DY Chandrachud, Justice Sanjay Kishan Kaul, Justice SA Nazeer and Justice KM Joseph.
A High Court collegium is led by its chief justice and four other senior-most judges of that Court. The High Court collegiums recommend their judges’ appointments and transfers to the Supreme Court collegium which passes it on to the government.
In all cases, the government does an Intelligence Bureau check of the candidate and its results are given to the Collegium as well. The government recommends or opposes the candidature; but if the Supreme Court collegium insists, the government has to approve the order. The government, if it wants, can keep the order pending.
Given the state of things, even the well-meaning decisions of the Collegium are questioned due to the opacity of the system. Transparency and accountability must be built in. Divergence of opinion within the Collegium must be fostered and the brotherhood of judges must join hands for a resilient and bias-free judiciary.
Controversial Transfers
- October 2021: Vinod Yadav, additional sessions judge at Karkardooma Court in Delhi was transferred to another district court by the Delhi High Court. Yadav had been severe on Delhi Police for its investigation in the Delhi riots case.
- November 2021: Supreme Court collegium’s recommendation for the transfer of Madras High Court Chief Justice Sanjib Banerjee (above) to Meghalaya High Court ran into controversy.
- March 2020: Delhi High Court judge, Justice S Muralidhar (below) was transferred to the Punjab and Haryana High Court just the day after he passed critical remarks against the Delhi Police in the Delhi riots’ case.
- December 2020: Jitendra Kumar Maheshwari, chief justice of the Andhra Pradesh High Court was transferred to the Sikkim High Court. The transfer came after the state’s chief minister Jagan Mohan Reddy complained to the Supreme Court that the High Court was blocking his policy decisions.
- September 2019: Justice VK Tahilramani, the Chief Justice of the Madras High Court was transferred to the Meghalaya High Court, following which she had resigned.
- November 2018: When Justice Akil Kureshi was expected to become the chief justice of the Gujarat High Court, he was transferred to the Bombay High Court.
- September 2017: Justice Jayant Patel was transferred from the Karnataka High Court. This was when he was senior enough to be the chief justice of the Allahabad High Court.
Centre asks CJI to name his successor
In a significant development related to the crisis in the Supreme Court Collegium, the Union Law Ministry has, reportedly, asked CJI UU Lalit to name his successor. Once the CJI does that, he can’t by convention call any meeting of the Collegium for recommending judges for appointment to the apex court, nor clear any names. Justice Lalit will retire on November 8, and Justice DY Chandrachud is in line to become the next CJI.
This development in the current context—when there are differences between the five members of the Collegium over giving written proposals for recommendation of judges to the top court—is likely to add a new twist over filling up the four judges’ vacancies.