‘Worried’ about pending transfers, SC says a ‘lot more’ is needed to be done

Supreme Court of India.

Supreme Court of India.
| Photo Credit: Sushil Kumar Verma

The Government’s delay in clearing certain pending transfers, including that of Orissa High Court Chief Justice S. Muralidhar to Madras and reiterated Collegium recommendation of senior advocate Saurabh Kirpal for appointment as Delhi High Court judge among others, saw a “worried” Supreme Court observe that a “lot more” is needed to be done, though “some developments” have happened since the last hearing on February 3.

“Some developments have happened, but a lot more is needed to be done,” a three-judge Bench led by Justice Sanjay Kishan Kaul orally said.

Justice Kaul was accompanied by Justices Manoj Misra and Aravind Kumar, two new appointments to the Supreme Court. Justice Misra was among a batch of five judges whose appointments were cleared on February 4, after a wait of nearly two months since the Collegium recommended their names for apex court judgeships on December 13 last year. Justices Kumar and Justice Bindal took oath as top court judges on February 13, about two weeks after the Collegium recommended his name along with Justice Rajesh Bindal on January 31.

The court has in the past wondered how some names are cleared “overnight” while others take ages.

“This cannot go on endlessly. At some point My Lords have to crack the whip,” advocate Prashant Bhushan submitted.

A note submitted by senior advocate Arvind Datar and Amit Pai features Justice Muralidhar’s name as first in a list of nine High Court judges recommended by the Collegium for transfer to other High Courts in September-November last year. They said the regular Chief Justiceship in Madras High Court has been vacant since September 12 last year.

In fact, the Collegium had recommended the transfer of Justice T. Raja, the current Acting Chief Justice of the High Court, to Rajasthan on November 24, 2022. Justice Raja is scheduled to retire on May 24, 2023.

The Collegium had proposed Justice Muralidhar’s transfer on September 28, 2022. He is scheduled to retire on August 7, 2023.

Mr. Datar has urged the apex court to lay down a timeline for the government to notify a transfer in the interest of the administration of justice.

In fact, Law Minister Kiren Rijiju had flagged the issue of lack of a timeline in the Memorandum of Procedure for judicial transfers in the Lok Sabha on February 10.

The Supreme Court, had in the previous hearing on February 3, put the government on a 10-day ultimatum to clear pending transfers in High Courts.

“Something has greatly disturbed us, if the transfer order of judges is not implemented… what do you want us to do? If you keep them pending… you will make us take some very, very difficult decisions,” Justice Kaul had said.

Attorney General R. Venkataramani had on February 3 sought more time. He did not appear on February 13. His office sought an adjournment.

In a January 6 hearing, the court had said delay in transfers “not only affects the administration of justice but creates an impression as if there are third party sources interfering on behalf of these judges with the government”.

The court had referred to the lead judgment in the Second Judges case that the “opinion of the Chief Justice of India has not mere primacy, but is determinative in the matters of transfer of High Court Judges/Chief Justices”.

Another list in the note submitted by Mr. Datar and Mr. Pai shows 13 pending reiterated recommendations for appointment to the High Courts, including that of Mr. Kirpal, who was first recommended on November 11, 2021 and reiterated again on January 18, 2023.

The list also contained the names of advocates Amitesh Banerjee, Sakya Sen, Nagendra Naik, Somasekhar Sundaresan who were recommended by the Collegium way back in 2019. Advocate R. John Sathyan also finds a place in the list. The Collegium resolution proposed his name on February 16, 2022 and reiterated it on January 18, 2023 with a direction that his seniority be maintained over those recommended separately on the same day. Yet, Justice Victoria Gowri was appointed as Madras High Court judge over him.

Noting that the Second Judges case mandated that Collegium reiterations should be cleared by the government for appointment as a “healthy convention”, the court, in its December 8 order, had underscored that “sending back a second time reiterated names would be in breach of this direction”.

The list also contains a list of seven names which were segregated or held back for while others in the same batch were appointed.

The Bench listed the case again on March 2.

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