Appointment & Transfer of Judges
- Original Position
- Under Article 124(2) & Article 217 (1), the Supreme court & High Court judges have to be appointed by the President of India in consultation with the CJI. The President was not bound by CJI’s recommendation.
- First Judges case 1981 – SP Gupta v. UOI
- Supreme court ruled that the recommendations made by CJI to president can be refused for “Cogent Reasons”. This verdict gave prominence to the say of “executive over judiciary”.
- Second Judges case 1993 – SC advocates on record v. UOI
- The supreme court created the collegium system of appointment of judges. Collegium shall consist of CJI and two senior most judges. The recommendation of collegium would be binding on the executive.
- Third judges case 1998 – Re. SC advocates on record v. UOI
- Supreme court formalized the collegium system giving guidelines for appointment & transfer of SC/HC judges.
Important SC Guidelines
- The term “consultation” with the Chief Justice of India in Articles 124 (2), 217(1) and 222 (1) requires consultation with a plurality of judges.
- The CJI can only make a recommendation to appoint a judge of the Supreme Court and to transfer a Chief Justice or puisne judge of a High Court in consultation with the 4 senior-most judges of the Supreme Court.
- As far as the High Courts are concerned, the recommendation must be made in consultation with the 2 senior-most judges of the Supreme Court.
- Seniority of judges rule must be followed generally, however, if departed “positive reason for the recommendation” has to be recorded in writing.
- The views of the judges consulted should be in writing and should be conveyed to the Government of India by the CJI.
- Recommendations by the CJI without consultation are not binding upon the government. The CJI is not entitled to act solely in his individual capacity
- The transfer of High Court judges is judicially reviewable if the process is not followed.
- The Collegium recommended for transfer of Banerjee on September 16 2021 but made its decision public only on November 9 2021.
- Senior advocates and retired judges have questioned the move to transfer Banerjee from a chartered high court with a sanctioned strength of 75 judges to a relatively low-profile Meghalaya high court with a sanctioned strength of just 4 judges.
- More than 250 lawyers signed and sent the Collegium a letter requesting it to reconsider the decision.
- The Madras Bar Association (MBA) and the Madras High Court Advocates Association (MHAA) also expressed displeasure and called for the recommendation to be revoked.
- Track record of Jus. Sanjib Banerjee
- Justice Banerjee is considered to adopt a no-nonsense approach to hearing cases. Banerjee made headlines when he asked why murder charges cannot be filed against the Election Commission for its failure to stop abuse of COVID protocols in election rallies by the political parties.
- Benches headed by him, have questioned the ruling dispensation time and again.
- A bench headed by him recently found the allegation that the BJP in Puducherry accessed voter details from Aadhaar database.
- Another bench presided by him saw no objection in Tamil Nadu government forming a committee to study the impact of NEET.
- Another bench headed by him, declined PIL to direct temples to perform pujas only in Sanskrit.
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