Why does the SC collegium hold primacy over transfers?

Source– The post is based on the article “Why does the SC collegium hold primacy over transfers?” published in The Hindu on 17th October 2022.

Syllabus: GS2- Judiciary

Relevance– Judicial appointment

News- The article explains the recent cases of the government unilaterally delaying or segregating names recommended by the Supreme Court Collegium.

What are cases of segregation and delays by the government in the names recommended by Collegium?

Justice Muralidhar’s transfer as the Chief Justice of the Madras High Court was along with the name Justice Pankaj Mithal were recommended by collegium. Both names were proposed jointly in a single batch. The government approved Justice Mithal’s transfer while keeping silent about Justice Muralidhar.

In 2014, the Collegium headed by then Chief Justice of India (CJI) R. M. Lodha had recommended former Solicitor General Gopal Subramanium for direct appointment to the Supreme Court. The government turned down Mr. Subramanium’s name while clearing the names of other senior advocates.

Why has collegium been given primacy in judicial appointments?

The Three Judges Case establishes the primacy of the Collegium in making judicial appointments. It will be the collective opinion of collegium.

CJI was given primacy as he was best equipped to know and assess the worth of a candidate for appointment as a superior judge.

The executive was to act as a mere check on the exercise of power by the Chief Justice of India, to achieve the constitutional purpose. Political influence was eliminated by this process.

It was for this reason that the word ‘consultation’ instead of ‘concurrence’ was used in the Constitution.

What is the way forward?

There is a need to introduce checks through the Memorandum of Procedure against unilateral segregation by the government.

A new MoP could also bring in a clause to clear names for judicial appointments within a reasonable time to avoid delay.