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Supreme Court collegium’s 2 recent decisions have left the door wide open for tough questions

One would not be off the mark in saying that under the last few CJIs, Supreme Court collegium has ceded ground and authority to government.

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The President of India last week accepted Madras High Court Chief Justice V.K. Tahilramani’s resignation from her post after the Supreme Court collegium decided to transfer her to the Meghalaya High Court.

This comes on the back of the Supreme Court collegium ‘modifying’ its earlier decision and appointing Justice A.A. Kureshi as the Chief Justice of Tripura High Court and not Madhya Pradesh High Court as was recommended earlier.

The two back-to-back decisions by the Supreme Court collegium have left the door wide open for key questions to be asked of it.

Was transfer a punishment?

According to a report in The Indian Express, the Supreme Court collegium decided to transfer Chief Justice Tahilramani due to her “short working hours” in the court; her decision to “abruptly” dissolve a bench, her alleged proximity to a senior politician in Tamil Nadu’s ruling party and purchase of two properties in Chennai.

So, was Chief Justice Tahilramani’s transfer a punishment?

It is a settled law that transfer is not a punishment. But, in the case of Chief Justice Tahilramani, we are expected to believe that her transfer was due to reasons that purportedly made her continuation as Chief Justice of Madras High Court untenable.

It is good if the collegium feels that a judge’s fewer working hours should be held against her. But, by that logic, shouldn’t the court make public the performance of each and every judge of the Supreme Court and the high court?

Shouldn’t the public have the right to know how many cases each judge handled and decided? Is there any performance evaluation system for the members of the higher judiciary and does the collegium consider the performance of each judge before deciding to elevate him or her as the Chief Justice of a high court or a judge of the Supreme Court?

Also, if the collegium thought that Chief Justice Tahimramani’s conduct was unbecoming of a high court chief justice, did CJI Ranjan Gogoi seek her response to the charges against her? Was she asked about the source of funds through which she allegedly bought two properties?

Was she asked about her alleged proximity to a senior ruling party leader? More importantly, is it now a settled law that a judge’s perceived proximity with a politician will go against him/her?

We don’t have answer to these important questions because when it comes to transparency in its functioning, the Supreme Court is often found wanting. Till 24 September, the Supreme Court website has asset details of only seven of the 34 judges.

It’s about time the Supreme Court makes public the assets of judges at the high courts and the Supreme Court, complete with the details of assets in the name of spouse and children. This list must be updated annually on the court’s website.

Also read: Supreme Court’s inconsistent stand on civil rights gives state a window to defeat them

Setting a new trend?

On the collegium’s decision to modify its own recommendation on Justice A.A. Kureshi’s appointment, did it find merit in the government’s arguments against making him the chief justice of Madhya Pradesh High Court?

I have reported how the Narendra Modi government tried everything in its arsenal to stall Justice Kureshi’s appointment, the senior-most judge at the Gujarat High Court, as the chief justice of a high court.

Was the collegium’s decision to modify its recommendation a result of the government pressure? More importantly, is the manner in which the collegium yielded to the government on Justice Kureshi’s appointment the new practice?

Was consultation with puisne judges held before the collegium’s recent decisions?

Under the Memorandum of Procedure, the CJI takes the view of one or more puisne judges of the Supreme Court conversant with the affairs of the particular high court while deciding on appointments or transfers.

One would not be off the mark in saying that under the last few CJIs, especially CJIs Ranjan Gogoi and Dipak Misra, the collegium has ceded ground and its authority to the government.

By bringing transparency in its own functioning, the collegium can still undo the damage to some extent. But the bigger question is: does the collegium want to do that?

Also read: Is Supreme Court being pragmatic by allowing Ayodhya mediation during legal proceedings?

The author is a senior journalist. Views are personal.

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  1. The Collegium is an unconstitutional entity, created by the apex court during the tenure of P V Narasimha Rao’s government on crutches at the Centre. It was given even a framework only almost 10 years later. Given the way in which a few judges trashed the duly enacted NJAC Act one has to think whether we need to continue with a costly election process and an equally costly legislating process when a few judges can sit and dictate the laws that they think are needed for laymen to live by. If it doesn’t suit sometimes they can increase the number of judges in a bench and decide to overturn it also.

  2. Judiciary and its functioning is a law onto itself – they are neither answerable nor can they be held accountable to anyone. They can roam stark naked if they want – the public has to bear these little tyrants in the name of “rule of law” or so we are told. We are “told” this because apparently our “honorable” judges past have shown contempt at Mr Ambedkar and his Constitution and have done away with any checks and balances he instituted on the Judiciary in terms of appointments because they found it more convenient to gaze into their “crystal ball” and decipher his “intention” – rather than something so pedestrian as his words!

    The Govt of India has done well to push back against the Judiciary and to make it check itself and not assume automatic approvals. In this regard the Modi Govt has done the Executive Branch proud as an effective “check” on the Judiciary. Unfortunately such daring cannot be expected from weaker Govts built on coalition crutches.

    Finally, there is the fifth column – the cabal of SC bar lawyers who do double duty in the Legislature and sometime even the executive – being a kind of Roman “pro consul” who has all the powers of all the branches vested within them – this allows them to govern both when in majority and in a minority by changing their robes to suit their convenience. This cabal has an interest in keeping the Judiciary out of check and the Legislature operate with an arm behind its back.

    People complain that our Legislature is a farce or our executive is authoritarian – but I submit the real travesty is the perversity that is our Judiciary – a totalitarian cabal who have cast off the shackles of Constitutionalism and have granted themselves a judicial “imperium” where even the color of the President of India’s underwear is “justiceable” by these unelected, unrespresentative, self-appointed, self-advertised doyens of moral rectitude.

  3. One should be a little discerning when these smears and taints, leaked to the media, begin to appear. When Foreign Secretary Sujatha Singh’s tenure was cut short, to elevate her junior, who was retiring in a few days, something similar happened. She gave a couple of interviews to clear the air and has been a model of rectitude and restraint ever since.

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