Due to the government’s refusal to give effect to various Supreme Court Collegium resolutions for reasons not available in the public domain, several high courts, including the Madras High Court, the Bombay High Court, the Rajasthan High Court and the Himachal Pradesh High Court, have been functioning without permanent Chief Justices for several months.
IN what can only be viewed as disregard for the Supreme Court Collegium, the Union government has let the collegium’s recommendation to transfer the acting Chief Justice of the Madras High Court, Justice T. Raja, to the Rajasthan High Court die in cold storage, with Justice Raja set to retire today.
Justice Raja has been working as acting Chief Justice at the Madras High Court since September 22 last year. The Madras High Court has not had a permanent Chief Justice since September 13 last year.
On November 16 last year, the Supreme Court Collegium had proposed the transfer of Justice Raja to the Rajasthan High Court. The recommendation was reiterated on April 19 this year, when the collegium requested the government to effectuate his transfer at the earliest. But a defiant government refused to budge.
The case of Justice Raja is not the only instance where the government has shown utter contempt for select recommendations of the collegium. On April 20, the collegium felt compelled to recall its six-month-old recommendation to the Union government to appoint Orissa High Court Chief Justice Dr S. Muralidhar as Chief Justice of the Madras High Court, conceding to the government’s refusal to give effect to the recommendation.
Justice Ramesh D. Dhanuka of the Bombay High Court was recommended for appointment as Chief Justice of that high court by the collegium, but only consequent to the appointment of the incumbent acting Chief Justice of the Bombay High Court, Justice S.V. Gangapurwala, as Chief Justice of the Madras High Court, which was also recommended by the collegium. But the government continues to sit on both the recommendations even as Justice Dhanuka is set to retire on May 30.
Justice Gangapurwala has been serving as acting Chief Justice of the Bombay High Court since December 12 last year, after the previous Chief Justice, Justice Dipankar Datta got elevated to the Supreme Court and demitted the office on December 11
Last month, the collegium recommended the appointment of the Punjab and Haryana High Court’s Justice Augustine George Masih as the Chief Justice of the Rajasthan High Court. The office of the Chief Justice of the Rajasthan High Court had been lying vacant since the elevation of its previous Chief Justice, Justice Pankaj Mithal, to the Supreme Court in February. However, the government is yet to notify his elevation to that effect.
Then there is the case of Justice Sabina, who served as the acting Chief Justice of the Himachal Pradesh High Court since January 21 this year, when Justice Amjad A. Sayed demitted the office of the Chief Justice, till her retirement on April 19. The collegium had recommended her appointment as Chief Justice of the high court on February 7, but the government never gave effect to the recommendation of the collegium.
The Himachal Pradesh High Court continues to function without a permanent Chief Justice, as the government is also yet to give effect to the collegium’s recommendation dated April 19 to elevate Justice M.S. Ramachandra Rao, presently serving as a judge at the Punjab and Haryana High Court, to helm the Himachal Pradesh High Court.
In the Second Judges case of 1993, a nine-judge Constitution Bench of the Supreme Court had held that the opinion of the Chief Justice of India not only has primacy, but is also determinative, in matters of transfer of high court Chief Justices and judges.
On February 3, a Supreme Court Bench headed by Justice S.K. Kaul, who is part of the collegium, had warned the Union government of “unpalatable consequences” if the collegium’s recommendations to transfer high court judges were not given effect in the next ten days. The said unpalatable consequences have not been inflicted.
In February, the Union government had informed the Parliament that as many as ten proposals for the transfer of high court judges from one high court to another were under various stages of processing with the government.