Light Theesko :‘Lakshman rekha’- For judicial or executive overreach?

Union Law Minister Kiren Rijiju’s concerns over lawyers’ protest on transfer of judges are misplaced, considering that the heartburn over palpable Executive overreach is widespread among judicial circles in many states, though unseemly protests among members of the legal fraternity spilled on to the streets in Gujarat, Telangana and Tamil Nadu against the proposed transfer of High Court judges. Given the Centre’s current track record, Rijiju will have a tough time justifying his criticism of protests by lawyers.

Although the SC Collegium is yet to finalize some of the transfers in question, media reports suggest that, apart from Justice Kariel of the Gujarat High Court, two judges of the Telangana High Court viz. Justices Abhishek Reddy and Lalitha Kanneganti and Acting Chief Justice of the Madras High Court, Justice T Raja, are slated to be transferred. Legal luminaries have reasons to believe that it is no longer a question of the transfer of one or two judges, but the very independence of the judiciary.

At a recent media conclave, Rijiju described the Collegium system as ‘opaque’ and ‘not accountable’. In the next breath, he betrayed the Union government’s intention by suggesting that, in the wake of the Supreme Court’s judgment on the National Judicial Appointments Commission, the Centre had respected the top court’s decision, and did not act immediately to find alternative ways. His caveat: “…it does not mean the government will be silent forever” no doubt sounds ominous.

The Supreme Court, in its October 2015 verdict, struck down the NJAC Act and the Constitution (99th Amendment) Act, 2014, leading to the revival of the Collegium system. The NJAC Act, 2014 had sought to give a major role to the Executive in appointing judges to the higher judiciary.

The Collegium system is once again under spotlight because of the unconscionable delay in the appointment of even those judges whose names had been duly cleared and the view in some circles that it has resulted in denial of equal opportunity to thousands of lawyers who are otherwise eligible, meritorious, and deserve to be considered.To cite a telling example, the name of advocate C Emalias (duly recommended for the Madras HC) had to be eventually dropped because the unexplained delay in his appointment saw him cross the age of 55. The SC Collegium had initially recommended Emalias’ name for appointment as judge of the Madras HC on December 4, 2017. It reiterated its decision in August 2018. Still, the Centre ignored it.

On February 16, 2022, the SC Collegium, headed by then CJI N V Ramana, recommended Nidumolu Mala, Sunder Mohan, Kabali Kumaresh Babu, S Sounthar, Abdul Ghani Abdul Hameed, and R John Sathyan for appointment as High Court judges. These names had been sent by the Madras HC Collegium to the SC Collegium in 2021. While four judges were appointed, the recommendations of Hameed and Sathyan are still pending. The government has neither returned the file to the Collegium nor made the appointment.

The name of Calcutta HC advocate Sakya Sen was first recommended by the HC Collegium in December 2017. However, the SC Collegium in August 2018 sent the name back to the High Court for reconsideration. In July 2019, the SC Collegium recommended Sen after the Calcutta HC Collegium sent his name again.Sen is yet to be appointed.Senior advocate Nagendra Naik, who belongs to Bhatkal in Karnataka, was counsel for the Central Bureau of Investigation under the Congress-led UPA government. The SC Collegium recommended him on October 3, 2019, along with eight other advocates. The government appointed all of them except Naik.

The Collegium system is not infallible. Certain elevations in the past have raised eyebrows. There have been cases of relatives of SC judges being appointed as High Court judges, sacrificing merit at the altar of nepotism. When Ranjan Gogoi was CJI, two high court judges, then at serial number 21 and 33 on the All-India Seniority list, were appointed to the Supreme Court, eclipsing many Chief Justices and judges senior to them. If such examples of the Collegium’s recommendations are fit to be called ‘opaque’, then the Centre, being party to those appointments, must also do some soul-searching.

If it is not OK to willfully recommend the wrong persons; so is the case if the right persons are not dutifully recommended. The name of Justice Akil Kureshi, who retired as Chief Justice of the Rajasthan High Court, was not recommended for elevation to the Supreme Court, though he was the senior-most judge in the All-India Seniority list of judges.

Likewise, the overnight transfer of Justice Muralidhar of the Delhi High Court to the Punjab and Haryana High Court raised eyebrows in judicial circles that were privy to the fact that he had taken the Delhi Police to task for not registering FIRs against BJP leaders accused of making hate speeches.

If Rijiju’s comments presage the Centre’s move to introduce reforms in the Collegium, there is dire need for a broad-based consultative process to arrive at a consensus on contentious issues without the threat of a repackaged NJAC-like Act hanging like a Damocletian sword over the judiciary. The Centre must clarify what it means by dubbing the functioning of the Collegium system as opaque. A distinction must be made between discussions in the Collegium among lesser mortals leading to the choice of an unmerited candidate and the informed decisions made by it to pick the best names among merited and probable candidates.

At the media conclave, the Law Minister expressed his displeasure at the Supreme Court getting involved in bail petitions and putting in abeyance the sedition law. The Minister spoke of a ‘Lakshman rekha for everybody’, adding: Do not cross the Lakshman rekha in the interests of the nation.” The sage advice applies to the Centre as well, considering the Constitution provides for sufficient checks and balances to ensure that the Executive, Legislature, and the Judiciary act in perfect coordination.