Listen to this article:
New Delhi: The Union government has once again controversially cherry picked the Supreme Court collegium’s recommendations by not clearing the transfer of Justice S. Muralidhar to the Madras high court as its chief justice.
The Supreme Court collegium on September 28 recommended the transfers of Justice Pankaj Mithal and Justice Muralidhar – serving as chief justices of the Jammu and Kashmir and Ladakh high court and Orissa high court – as chief justices of the Rajasthan and Madras high courts respectively. The Department of Justice on Tuesday, October 11, only notified the transfer of Justice Mithal.
The department also notified the recommendations made by the collegium on September 28 to elevate Justice Prasann Bhalachandra Varale (of the Bombay high court) as the chief justice of the Karnataka high court and elevation of Justice Ali Mohd Magrey of the Jammu and Kashmir high court as its chief justice.
Instances of the government holding back the recommendations of the Supreme Court collegium have become more frequent since Narendra Modi came to power. It has sparked concerns that the executive has taken over control of the appointment of judges to various high courts and the Supreme Court by selectively and arbitrarily holding back appointments and transfers of certain judges.
In 1993, the Supreme Court arrogated to itself the power of appointment and transfer of high court and Supreme Court judges and said that any decision by the government to withhold a recommended judicial appointment must be “for good reasons” that would enable the CJI to reconsider and withdraw the recommendation if needed. However, if the recommendation is reiterated after due consideration, “then that appointment as a matter of healthy convention ought to be made”.
This has not been the case in several recommendations made by the collegium in the past eight years. The justice department withheld the recommendations of the Supreme Court collegium in 2014 to appoint advocate Gopal Subramanium as an SC judge, while Justice K.M. Joseph’s appointment in 2018 was delayed without reason. In the case of Justice Akil Kureshi, the government did not notify the collegium’s recommendation to appoint him as the chief justice of the Madhya Pradesh high court. The collegium then sent him to the Tripura high court.
In an article for The Wire, former Supreme Court judge Madan Lokur said that the Supreme Court collegium “has been reduced to nothing more than any other non-statutory body whose recommendations can be disregarded”. He noted that the justice department has dealt with the recommendations in three ways: notify them speedily; grudgingly accept them after sitting on them for days; and simply ignore the recommendations and, by necessary implication, reject them.
Justice Muralidhar, as a judge of the Delhi high court, passed four crucial orders on February 26, 2020 – when the capital was in the grip of deadly riots. One of those orders asked the Delhi police to register a first information report against BJP leaders – including Anurag Thakur – for alleged hate speeches that petitioners said instigated the riots.
Following these orders, the government notified his transfer to the Punjab and Haryana high court – recommended earlier by the collegium – late at night on February 26, without stipulating the customary two weeks for the judge to wrap up business.
Justice Muralidhar began his law practice in Chennai in September 1984 and shifted to the Supreme Court and Delhi high court in 1987. He was initially appointed as a judge of the Delhi high court in May 2006 and later was transferred to the Punjab and Haryana high court on March 6, 2020. He took oath as the Chief Justice of the Orissa high court on January 4, 2021.
Note: This article was originally published at 2:09 pm on October 11, 2022 and was republished at 8:50 pm on the same day.
(With PTI inputs)