Frankly, I don’t know what to make of it, but it does seem to me that the collegium system of appointment of judges is getting unscrambled and it’s pretty close to a technical knockout. Consider the following jabs and uppercuts.
The case of Justice Muralidhar
Justice S. Muralidhar, Chief Justice of the Orissa high court and undoubtedly one of the finest judges in the country, was recommended for transfer by the five senior-most judges constituting the Supreme Court Collegium (5SCC) as the CJ of the Madras high court. This was on September 28, 2022. What happened?
A resolution was passed by the 5SCC on April 19, 2023 which states that the “recommendation has remained pending with the Government of India since then without any response.” Was a response needed? As far as I am concerned, no response was required. The government was only to honour the recommendation by implementing it or sending it back to 5SCC for reconsideration. The resolution has not been implemented and it doesn’t seem to have been returned for reconsideration. The result: recommendation recalled by 5SCC on April 19, 2023.
Justice S. Muralidhar. Photo: Twitter/@neljp
The case of Justice Raja
What is the consequence of the aborted exercise? First, the Madras high court has been left without a CJ for six months (an ‘embarrassment’ noted by the 5SCC and administratively terrible for the high court). Second, another judge had to be recommended for the position of CJ of the Madras high court. The 3-judge Supreme Court Collegium (3SCC) recommended Justice S.V. Gangapurwala for this position.
Now, Justice Gangapurwala is junior to the senior-most judge in Madras, that is, Justice T. Raja. So, he will be superseding Justice Raja. Supersession is an anathema in the judiciary. Remember, it was exactly 50 years ago that three Supreme Court judges (Justice J.M. Shelat, K.S. Hegde and A.N. Grover) were superseded and their junior appointed as the Chief Justice of India. They resigned in disgust and protest. Then a couple of years later Justice H.R. Khanna was superseded for the position of the CJI and he too resigned in disgust and protest. We are reliving those sordid days but at the high court level.
Will Justice Raja resign? Why should he? He retires on May 24, 2023, less than a month away. He can go on leave or better still, the government may not respond to the recommendation. Remember, Justice Sabina was recommended by 3SCC on February 7, 2023 for appointment as the CJ of the Himachal Pradessh high court, being “fit and suitable in all respects” for the appointment.
With no response from the government, Justice Sabina retired on April 19, 2023 without being appointed CJ of the Himachal Pradesh high court.
Third, to get over the seniority problem with the possible appointment of Justice Gangapurwala (which can also be easily delayed by the government by a month), the 5SCC resolved on April 19, 2023 that “the transfer of Justice T Raja as a Judge of the High Court of Rajasthan be effectuated at the earliest.”
There is a background to this also. Earlier, the 5SCC had recommended the transfer of Justice Raja from the Madras high court to the Rajasthan high court on November 16, 2022. (There appears to be a typo in the statement issued by the SC which mentions the date as November 24, 2022.) While no reasons were given, presumably it was for the better administration of justice. On November 23, 2022, Justice Raja sought reconsideration of his transfer and on November 24, 2022 his request for reconsideration was rejected and the decision to transfer him was affirmed. These facts are recorded in the resolution of April 19, 2023 passed by the 5SCC. It was further resolved that his transfer to the Rajasthan high court “be effectuated at the earliest.”
There has been no response from the government, but unlike in Justice Muralidhar’s case, the resolution transferring Justice Raja has not been recalled. Remember, Justice Raja retires on May 24, 2023 so there is an insistence on his transfer. Assuming the government acts on the resolution and transfers Justice Raja and he refuses to go to Rajasthan, what can be done? Perhaps nothing. There is not enough time to impeach him (assuming impeachment proceedings are maintainable).
What about the financial impact on the state of Rajasthan? In 2009, Justice Bilal Nazki was transferred and appointed as the CJ of the Orissa high court for only three days. It seems the state government objected due to the financial implications, which as per a report in Hindustan Times was in the region of Rs 75 lakh. This is followed by pension for life, the burden to be borne by Odisha. So, what is the financial implication of insisting on transferring Justice Raja to Rajasthan and is Rajasthan willing to bear the burden?
Also Read: The Government Wants a ‘Committed Judiciary’ – And Could Be Close To Getting One
Cases of R. John Sathyan and Abdul Hameed
On February 16, 2022 the proposal for elevation to the Madras high court of six advocates was approved by the 3SCC. Two of the advocates were appointed in March 2022 and two in June 2022, perhaps with an adverse impact on the seniority of the June appointees. There was no response from the government regarding the remaining two, that is, R. John Sathyan and Abdul Ghani Abdul Hameed.
It appears that the government had some reservations about the recommendation concerning R. John Sathyan and returned the recommendation to the 3SCC for reconsideration. It is not clear when this happened but on January 17, 2023 the recommendation was reconsidered by the 3SCC in light of what was possibly said by the government. On reconsideration, the 3SCC resolved “to reiterate its recommendation dated 16 February 2022 for appointment of Shri R. John Sathyan, Advocate, as a Judge of the Madras High Court. The Collegium further recommends that he be given precedence in the matter of appointment as Judge over certain names separately recommended today by this Collegium for appointment as Judges of the Madras High Court.” This is important for what followed.
On January 17, 2023 a proposal for the elevation of five advocates and three judicial officers as judges in the Madras high court was approved by the 3SCC. As mentioned above, R. John Sathyan was required to rank senior to them. What happened? Five of those recommended were appointed and took oath of office on February 6, 2023 (including the ‘controversial’ appointment of Justice Gowri); the sixth on February 23, 2023 and the seventh on March 23, 2023. It is not clear whether the seniority of the last two has been adversely impacted. There has been no response from the government regarding one of the 8 (Ramaswamy Neelakandan). There has also been no response from the government about the appointment of R. John Sathyan but the resolution of the 3SCC dated January 17, 2023 regarding his seniority has obviously been disregarded. Why?
In all this confusion, if one may put it like that, the recommendation for the appointment of Abdul Ghani Abdul Hameed seems to have been forgotten – with no response from the government since February 16, 2022.
What will be the fate of the recommendation regarding R. John Sathyan, Abdul Ghani Abdul Hameed and Ramaswamy Neelakandan? Will the recommendations be recalled due to no response from the government? No one knows but it will be tragic if the recommendations are withdrawn.
Advocate John Sathyan. Photo: By arrangement
Cases of recent reiterations
A few broad facts:
Calcutta high court:
Amitesh Banerjee: On July 25, 2019, the proposal for his elevation was approved by the 3SCC. On July 23, 2021 (two years later) the government returned the recommendation for reconsideration by 3SCC. On September 1, 2021, the recommendation was reiterated by the 3SCC.
Sakya Sen: On July 24, 2019, the proposal for his elevation was approved by 3SCC. On September 27, 2021 (more than two years later) the government returned the recommendation for reconsideration by 3SCC. On October 8, 2021, the recommendation was reiterated by 3SCC.
On November 25, 2022 the government “referred back the file” (of both these judges) to the 3SCC without “any fresh material or ground”.
On January 18, 2023 it was resolved by the 3SCC “to return the file for processing the recommendations for appointment of S/Shri Amitesh Banerjee and Sakya Sen as Judges of the Calcutta High Court expeditiously.”
There has been no response from the government since then.
Bombay high court:
Somasekhar Sunderesan: On February 16, 2022, the proposal for his elevation was approved by the 3SCC. On November 25, 2022, the government sought reconsideration of the proposal. On January 18, 2023, it was resolved by the 3SCC to reiterate its recommendation for his appointment as judge of the Bombay high court.
There has been no response from the government since then.
Delhi high court:
Saurabh Kirpal: On November 11, 2022, the proposal for his elevation was approved by the 3SCC. On November 25, 2022, the government sought reconsideration of the proposal. On January 18, 2023 it was resolved by the 3SCC to reiterate its recommendation for his appointment as judge of the Delhi high court “which needs to be processed immediately.”
There has been no response from the government since then.
What do you make of all this, dear reader? You be the judge.
Justice Madan B. Lokur is a former judge of the Supreme Court of India.
