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Opinion

The SC school must realize that it is supreme in the current framework: analysis

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The judicial college, which comprises the President of the Supreme Court of India and the four highest-ranking judges of the Supreme Court (SC), has once again disappointed us in recommending the transfer of Judge S Muralidhar, one of the best judges in the country , known for his independent opinions, as judge of the Superior Court of Punjab and Haryana. On Wednesday, the Center notified the transfer.

It can be argued that the transfer is intended for his own good and that Judge Muralidhar will eventually assume the position of President of the Supreme Court in Chandigarh, once the current President of the Supreme Court, Ravi Shanker Jha, is elevated to the Supreme Court ( SC).

It is assumed that once that happens, Judge Muralidhar as the highest judge will assume the position of President of the interim Supreme Court until his formal orders are issued as President of the Supreme Court.

But this raises a difficult question: why was he not directly appointed as president of a higher court? Assuming that when it is your turn to become the President of the Supreme Court in Chandigarh, will the government return to your appointment? What will the school do then?

Will it weaken as it did in the case of Akil Abdulhamid Kureshi (who was originally recommended as President of the Supreme Court of Madhya Pradesh)? The then college headed by the former president of the Supreme Court of India, Ranjan Gogoi, transferred it to Tripura when the government refused. Or will he dig into his heels and say that since there is no Procedural Memorandum to decide on such matters, will the school continue to decide appointments?

The law is clear about the primacy of the school. In fact, the government has little role in the process of appointing and transferring judges as it has been held in the Association of Defenders in the Registers of the Supreme Court and in Other vs.. Union of India (popularly known as the Second Case of the Judges) – Written Petition (Civil) No. 1303 of 1987: “It has been indicated that the judiciary is the most appropriate and has the best opportunity to assess the true value of Candidates, the constitutional purpose of selecting the best men available for appointment as Superior Judges is the best complied with attributing to the judiciary, as consulted, a more important role in the appointment process. The only question is about the scope of such importance and the true meaning of the primacy of the role of the President of the Supreme Court of India in this context, “said the ruling.

He added: “A homogeneous mixture, which is consistent with the constitutional purpose and ethics, indicates that it is the opinion of the judiciary ‘symbolized by the opinion of the President of the Supreme Court of India’ that is given greater importance or primacy in the team affair. In other words, the opinion of the President of the Supreme Court of India must be expressed in the consultative process as a true reflection of the opinion of the judiciary, which means that it must necessarily have the element of plurality in its formation. In actual practice, this is how the President of the Supreme Court of India works, and it is expected to work, so that the final opinion expressed by him is not only his individual opinion, but the collective opinion formed after taking into account the opinion of other judges. who are traditionally associated with this function. ”

I think it is time for the school to reinvent itself and reaffirm itself. It is true that there may have been moments under Justice Gogoi when it seemed to have turned it into an extension of the law ministry. But now we have a new school for the president of the court, Sharad Arvind Bobde, known for being fair and independent, and that includes Judge Rohinton Fali Nariman, who is fiercely independent and one of the best judges the country has ever known. Sooner or later, the school will have to sound the cat and resist the overcoming and dilution of its recommendations by the government.

The problem is that, even without an apparent word, the government can control judicial appointments. The discomfort begins at the level of the higher courts. The High Court Collegium, composed of the President of the Supreme Court and the two most senior judges, is generally reluctant to recommend to anyone they know the government can object to. Those who decide to recommend are also in danger because the government can always block their names with inconvenient intelligence reports.

On the other hand, the school system itself is not infallible because we have had capricious chief judges and strange decisions. For example, the transfer of Judge Rajiv Shakdher to the Superior Court of Madras from the Superior Court of Delhi by the then President of India, Tirath Singh Thakur, received criticism from members of the bar and even some sectors of the government. Judge Shakdher was finally transferred back to Delhi after 20 months, by a different court president.

Even so, as a whole, the collegiate system has produced better judges than those of the pre-school era. But much depends on the school of the moment. Whatever their intentions, the school must realize that it is supreme in the current framework.

The college of the Supreme Court must send a strong signal. How the transfer of Justice Muralidhar develops in the future, will tell us about the strength of the collegial system. Let Judge Muralidhar not become another Kureshi judge.

Rajiv Nayar is a principal lawyer practicing in the Superior Court of Delhi

The opinions expressed are personal.

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