The Latest argument held on the transfer of Chief Justice of Madras High court Vijaya Kamlesh Tahilramani to High court of Meghalaya and her consequent resignation. First of all we should aware of the collegium system, what is it. The collegiums system is a system under which appointments/elevation of Judges or lawyers to Hon’ble Supreme Court and transfer of Judges of Hon’ble High courts and Apex court are decided by a forum of Chief justice of India and also the four senior-most judges of the Supreme Court. This thing should note that there is no mention of the collegium system either in the original constitution of India or in any other successive amendments. First time controversy arose in the year 1973 that was the appointment of Chief Justice of India A.N Ray. The government suddenly broke the 22 year old practice within few hours of the delivery of the judgment in the Fundamental Right case. Mr. A.N Ray was appointed as CJI superseding three of the senior colleagues. This action of government raised a greater controversy. And After that many other transfers and appointments were held which gave massive controversy.
The collegium sends the recommendations of the names of lawyers or judges to the central government. Similarly, the central government also sends the names of some lawyers and judges to the collegium. Then central government does the fact checking and investigate the names and resends the names and resends the file to the collegium. After that collegium the names or suggestions made by the central government and resends the file to the government for the final approval. Now if the government resends the same name again then the government have to give the assent to those names but very important thing is that time limit is not fixed to reply, that is why the appointment of judges takes a long time. There were some cases held on the appointment and transfer of judges such as Sankalchand Sheth case: In this court held that word “consultation” meant full and effective consultation, S.P Gupta v. Union of India populary known as Judges transfer case and also S.C Advocate on Record Association v. Union of India.
The Supreme Court collegium, have top five judges of the court, had decided to transfer Justice Tahilramani to Meghalaya High court in the interest of better administration of justice in Meghalaya and the Chief Justice of Meghalaya High Court Ajay Kumar Mittal to the Madras High court. When the decision was sent to her, she asked for reconsideration of her transfer. The collegium said that it would not possible to accede to her request. Many senior lawyer and advocates are opposing this decision of the collegium and argued that she is transferring from one of the larger court to one of the smallest court and said this decision disrespects Justice Tahilramani, the collegium even don’t reconsider the decision of transfer. The collegium has many faults, not only for its being seen as something unforeseen by the constitution makers, but also for the way its functions. Also there is lack of transparency and the scope of nepotism is there. Once the retired Supreme court judge Justice Ruma Pal said “ The mystique of the process, the small base from which the selections were made and the secrecy and confidentiality ensured that the process may on occasions, make wrong appointments and worse still, lend itself to nepotism”. The attempt made to replace it by a (NJAC) National Judicial Appointments Commission was struck down by the court in 2015 on the ground that it posed a threat to the independence of the judiciary. And also the majority of opinions admitted the need for transparency in the collegium.
By concluding we can say that the collegium system must highlight the need to relook the process of appointment of Judges. The panel of collegium must take decision on transfer and appointment keeping in mind of Judges Seniority and also by seeing that by this transfer his/her ego is not hearted. One thing that we can argue that why not the whole process of collegium system come under the RTI where the common people, lawyer and advocate have right to ask the judiciary on appointment or transfer of judges in any court. The collegium process must be democratic in nature because there are many countries where in the appointment the democracy is an essential part. At last but not least Judges should think about this system why this system have lots of controversy even when the appointment is not in the hand of politicians.
This article is authored by Arpit Pandey, student of B.A. LL.B (Hons.) at ICFAI Foundation Of Higher Education (IFHE) University