Veto by silence

Background:

• In September 2022, the Collegium recommended Justice S. Muralidhar as the next Chief Justice of the Madras High Court to succeed Justice M.N. Bhandari, who retired as head of the Madras High Court.
• However, the Union government did not act on the recommendation for eight months, resulting in Justice T. Raja, the senior-most judge in Chennai, serving as Acting Chief Justice for an unusually long period.
• In November 2022, Justice Raja’s transfer to the Rajasthan High Court was decided by the Collegium, but the Centre did not notify his transfer.
• In January 2023, the Collegium decided to recall its recommendation of Justice Muralidhar and instead proposed the name of Justice S.V. Gangapurwala of the Bombay High Court as the next Chief Justice of the Madras High Court.

Analysis:

1. Centre’s Delay in Appointment:

• The Centre’s deliberate inaction in not acting on the Collegium’s recommendation for eight months is a matter of concern.
• It appears to be a means to stall the transfer of Justice Muralidhar to the Madras High Court, raising questions about the Centre’s intentions.
• This also highlights the limitations of the Collegium system, which is based on the premise of judicial primacy, but is vulnerable to executive interference.

2. Collegium’s Decision to Recall Recommendation:

• The Collegium’s decision to recall its recommendation of Justice Muralidhar and propose the name of Justice Gangapurwala is likely due to the need for a permanent Chief Justice for the Madras High Court.
• Justice Raja’s transfer to the Rajasthan High Court has resulted in him serving as Acting Chief Justice for an unusually long period, which may not be conducive to the effective functioning of the court.
• The Collegium’s decision to propose a new candidate indicates a willingness to move beyond the stalemate and work towards the smooth functioning of the Madras High Court.

3. Concerns for Independence of Judiciary:

• The Centre’s inaction raises concerns about the independence of the judiciary and the vulnerability of the Collegium system to executive interference.
• The Centre’s ability to stall appointments by not acting on recommendations may embolden it to exercise a right to veto any appointment or transfer proposed by the Collegium, undermining the primacy of the judiciary.
• The present state of affairs, where the executive can circumvent the Collegium’s recommendations, is a matter of concern for the independence of the judiciary and the rule of law.

Conclusion:

• The recent developments in appointments to the Madras High Court raise questions about the independence of the judiciary and the efficacy of the Collegium system.
• While the Collegium’s decision to propose a new candidate indicates a willingness to move beyond the stalemate, the Centre’s ability to stall appointments through inaction raises concerns about the primacy of the judiciary.
• It is essential to address these concerns and ensure that the independence of the judiciary is protected to uphold the rule of law.