As CJI U.U. Lalit recommends his successor, Union Government signals it can cherry-pick from Collegium’s recommendations

As the new Supreme Court Collegium under the leadership of the next CJI, Justice Dr. D.Y. Chandrachud, is set to begin functioning from November 9, the focus is on whether it can assert itself vis-à-vis the Union Government, in the turf battle on appointment and transfer of judges to the higher judiciary.

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ON a day when the incumbent Chief Justice of India ('CJI'), U.U. Lalit, handed over a copy of his recommendation to elevate the senior-most puisne judge of the Supreme Court, Justice Dr. D.Y. Chandrachud, as his successor, after his retirement on November 8, the Union Government sent a subtle message by cherry-picking from the Collegium's recommendations. The coincidence of these two events – both on October 11 – could not be missed by observers, as it clearly suggested who – between the government and the CJI-led Collegium – calls the shots on the question of appointment and transfer of judges in the higher judiciary.

The Union Government sent this subtle message by withholding on Tuesday, the Collegium-recommended transfer of the Orissa High Court Chief Justice Dr. S. Muralidhar as the Chief Justice of the Madras High Court, while notifying the transfer of the Jammu & Kashmir and Ladakh High Court Chief Justice Pankaj Mithal as Chief Justice of the Rajasthan High Court. The government has also appointed the Bombay High Court's Justice P.B. Varale and the Jammu & Kashmir and Ladakh High Court's Justice Ali Mohammad Magrey as the Chief Justices of the Karnataka, and the Jammu & Kashmr and Ladakh high courts, respectively. The Supreme Court Collegium made recommendations to this effect on September 28.

The size of the Collegium for appointment of Supreme Court judges, and transfer of high court Chief Justices is five, which includes the CJI and the four senior-most puisne judges of the Supreme Court, while a smaller Collegium of the CJI and the two senior-most puisne judges recommends appointment of high court judges.

It is not immediately clear whether the government has returned the recommendation regarding Justice Dr. Muralidhar to the Collegium for reconsideration, or it has decided to sit over the recommendation for now. This has also halted the appointment of Justice Jaswant Singh, the senior-most judge of the Orissa High Court, as the Chief Justice of that high court. The Collegium had also recommended the appointment of Justice Singh as Chief Justice there.

The government is yet to appoint the Bombay high court's Chief Justice Dipankar Datta as a Supreme Court judge despite being recommended by the Collegium on September 26. This delay is in contrast with the speed with which the government had approved the names of Justices J.B. Pardiwala and Sudhanshu Dhulia as judges of the Supreme Court earlier this year (the Collegium had recommended their appointment on May 5, and the government notified the same on May 7).

The Madras High Court has been functioning without a regular Chief Justice since September 13. Although the senior-most puisne judge in the high court, Justice T. Raja took over as the Acting Chief Justice on September 22, observers say that he cannot function so for long, without breaching the norm that the high court Chief Justice should be from a different state. Besides, the Acting Chief Justice's competence to head high court Collegium meetings is doubted by some observers.

Justice Dr. Muralidhar hails from the Delhi High Court. He was appointed as the Chief Justice of the Orissa high court on January 4, 2021, and is continuing there since then. Before his elevation as Chief Justice of the Orissa high court, he was transferred to the Punjab and Haryana High Court from his parent high court, that is, the Delhi high court. The government's notification shifting him to the Punjab and Haryana High Court had come hours after a bench headed by him had pulled up the Delhi Police for its inaction in lodging first information reports against Bharatiya Janta Party leaders Kapil Mishra, Anurag Thakur and Parvesh Sahib Singh Verma for their alleged inflammatory speeches against anti-Citizenship (Amendment) Act protestors.

The Delhi High Court Bar Association had expressed its shock and condemned the transfer of Justice Dr. Muralidhar to the Punjab and Haryana high court. The Association had abstained from work on February 20 as a token of protest.

It is not the first time that the Union Government has withheld the recommendation of the Collegium. In 2019, the government refused to appoint the then Gujarat High Courts Justice A.A. Kureshi as Chief Justice of the Madhya Pradesh High Court. This led the Collegium to modify the recommendation to the effect that instead of the Madhya Pradesh high court, he was recommended for elevation as the Chief Justice of the Tripura high court. He then took over as the Chief Justice of the Tripura High Court on November 16, 2019.

In September 2020, the Collegium recommended his transfer to the Rajasthan High Court where he took oath on October 12, 2021. It is widely perceived that the current government's indifferent attitude toward Justice Kureshi was on account of his decision as a Gujarat high court judge remanding current Union Home Minister Amit Shah in the custody of the Central Bureau of Investigation in the alleged fake encounter of suspected gangster Sohrabuddin Sheikh, over a decade ago, in 2010.

In 2016, Justice K.M. Joseph, who is now a Supreme Court judge, and a part of Collegium, sought his transfer from the Uttarakhand High Court on the ground of health issues. The Collegium had recommended his transfer to the Andhra Pradesh High court as Chief Justice, which the Union Government never notified.

The Collegium headed by the then CJI T.S. Thakur had recommended the transfer of the then Delhi High Court judge, late Justice Valmiki Mehta to the Andhra Pradesh and Telangana High Court, and Justice M.R. Shah, then at the Gujarat High Court, to the Madhya Pradesh High Court. However, the Union Governemnt never notified their transfers. With the retirement of CJI Thakur, and the appointment of Justice J.S. Khehar, the recommendations were withdrawn.

The next Supreme Court Collegium, to be headed by the next designated-CJI-to-be, Justice Dr. Chandrachud, will consist of six members, as the Memorandum of Procedure of Appointment of Supreme Court judges requires that if the successor CJI is not one of the four senior most puisne Judges, they would be made part of the collegium as they should have a hand in the selection of judges who will function during their term as CJI. As Justice Sanjiv Khanna – who is currently 10th in the seniority list among the Supreme Court judges – is likely to succeed Justice Chandrachud in 2024, he would be inducted into the Collegium as the sixth member.

Observers wonder whether the new Collegium with six members would be in a position to tilt the balance of power in its favour, by reiterating its recommendations, not acted upon by the government.