Introduction
The functioning of Collegium: Issue of Transfer
The issue at hand is related to the transfer of the Chief Justice of the Madras High Court, Justice Vijaya Kamlesh Tahilramani, to the Meghalaya High Court. Justice Tahilramani resigned from the post on September 6, 2019 after her request for reconsideration of the transfer was rejected by the collegium, headed by the former Chief Justice of India, Ranjan Gogoi, on September 5, 2019.
Commenting on the issue, Supreme Court Advocate Anil Mishra said that it is not for the first time when the decision by the collegium was under fire. In the past too, transfers and elevations had been questioned. On the other hand, the official statement from the Supreme Court says that the collegium, in its minutes dated August 28, 2019 recorded that the transfer of Justice Tahilramani was done in the interest of better administration of justice.
The collegium states that the recommendations were made for cogent reasons and in compliance of the required procedure, which would not be in the interest of the institution to disclose. However, if the need arises, the same will be disclosed unhesitatingly. The resignation was accepted by the president in September 2019.
Important Points to Note
(i) Normally transfer of a Chief Justice from one high court to another does not and should not lead to any controversy. So, Tahilramani’s transfer seems to be a punitive one.
(ii) Madras High Court has a sanctioned strength of 75 judges (56 permanent and 19 additional), whereas the Meghalaya High Court’s strength is 4 judges (3 permanent and 1 additional). Though all the high courts are equal in terms of status and importance, Tahilramani’s transfer lacked grace and is ex facie suggestive of humiliation.
(iii) The collegium is an invention of the Supreme Court and does not figure in the Constitution.
Justice Tahilramani to Face CBI Probe
The Intelligence Bureau (IB) has charged Justice Tahilramani of the purchase of two flats in the outskirts of Chennai. The CBI has to look into whether the properties are declared or not.
The IB report also mentions Tahilramani’s decision to dissolve a special bench, hearing the idol theft cases against influential people.
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Collegium of Supreme Court
Collegium of Supreme Court is a system under which judges are appointed by the president and speaks of a process of consultation. In 1970s, some judges were superseded in the appointment of the Chief Justice of India (CJI) and a mass transfer of high court judges was attempted, which made independence of the judiciary vulnerable.
The first judges case (1981) ruled the ‘consultation’ with the CJI regarding appointments must be full and effective. However, the idea of the CJI’s compulsory consultation and his opinion carrying great weight was rejected.
Thereafter, the collegium system was introduced in 1993 in the second judges case, which held that ‘consultation’ really meant ‘concurrence’, and not the CJI’s individual opinion. It was an institutional opinion formed after consulting two senior-most judges of the Supreme Court. Then in 1998, the collegium was expanded to a five-member body, consisting of the CJI and four of his senior-most judges.
How Collegium Functions
The outgoing CJI recommends his successor, who is generally the senior-most judge. The Union law minister forwards the recommendation to the prime minister to advise the president who appoints the CJI.
Other judges of the Supreme Court are also appointed by the president. For this, the proposal is initiated by the CJI, who consults rest of the collegium members and the senior-most judges from the high court to which the recommended person belongs.
The written opinions of the high court judges become part of the file, which is sent to the law minister, who forwards it to the prime minister to advise the president. The chief justice of high court is from outside the respective state.
As for the appointment of high court judges, the recommendations of the collegium, consisting of the CJI and two senior-most judges, are sent to the chief minister, who advises the governor to send the proposal, initiated by the chief justice of high court, to the union law minister.
Apart from appointment, the collegium also recommends the transfer of chief justices and other judges. As per Article 222, the transfer of a judge from one high court to another must also be replaced simultaneously. In this concern, the opinion of the CJI is ‘determinative’ with the consent of the concerned judge. However, the CJI should consult the chief justice of the concerned high court and one or more SC judges.
Criticism of the Collegium
Many have faulted the system of collegium for the way it functions. Lack of transparency and the scope for nepotism are often cited as reasons. An attempt was made to replace it with National Judicial Appointments Commission (NJAC), but the court struck it down in 2015 on the ground that it posed a threat to the independence of the judiciary. This was termed as ‘inherently illegal’ by justice Chelameshwar.
As for transfer, some do not believe in full disclosure of reasons for transfers. The possible reasons could be having relatives in the same court and embroilment in public controversies.
Some critics also opine that ‘zone of consideration’ must be expanded to avoid any bias in matters of appointment. Similarly, the status of a proposed new memorandum of procedure is also not clear regarding greater accountability.
The recent developments pertaining to transfer policy of CJs of high courts and other judges by the collegiums have raised some valid and thought-provoking questions on the role of the collegium.
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