CONTEXT : Recently, Chief Justice of the Madras High Court Sanjib Banerjee has been abruptly transferred to head the Meghalaya High Court, its the second such instance.
In September 2019, Justice Vijaya K. Tahilramani resigned after getting shifted from Madras to the Meghalaya High Court at a time when she was the country’s senior-most Chief Justice.
Collegium System:
A system of appointment and transfer of judges that has evolved through the SC judgments [ not by an Act of Parliament or by a Constitution provision].
The SC collegium is headed by the CJI and 4 other senior most SC judges.
A HC collegium is led by its Chief Justice and 4 other senior most HC judges. Names recommended by a HC collegium for appointment reaches the government only after CJI approval and the SC collegium.
Judges of the higher judiciary are appointed only through the collegium system and the government has a role only after the collegium decides the names.
The government can only get an inquiry conducted by the Intelligence Bureau (IB) if a lawyer is to be elevated as a judge in a High Court or the Supreme Court.
The functioning of the collegium system of judicial appointments and transfers is ambiguous.
ACCEPTED THAT – 1 High Court is as important and prestigious as another
ACCEPTED THAT – the Chief Justice of India is empowered to transfer the head of any High Court in the interest of the “better administration of justice”.
WHERE THE PROBLEM LIES ?
When it is unclear why a senior puisne judge in another High Court, (about to be elevated), could not be adjusted there?
If a Chief Justice is not fit for an elevation to the Supreme Court, were there sufficient reasons to transfer the office bearer ?
High Court Chief Justices too identify the judicial talent for appointments and streamlining administrative functions.
A serving Chief Justice should be given a tenure long enough in a High Court to discharge these functions effectively.
In Justice Banerjee’s case, the transfer came within 10 months of his assuming office, raising the question whether he was being punished for some hidden reason ?
It may be a possibility that his transfer has anything to do with his stern approach and stinging oral observations while seeking accountability from the Government and other institutions.
5 MEMBER COLLEGIUM MEANS :-
According to ‘The Memorandum of Procedure for judicial appointments and transfers’ -:
A proposal to transfer a High Court judge can only be initiated by the CJI, [whose opinion in this regard is indisputable] alongwith the views of “one or more knowledgeable Supreme Court judges”.
Why any concern relating to a Chief Justice’s style of functioning or conduct should not have been quietly resolved by the CJI without transferring, is not clear ?
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