Collegium fails judiciary again

The Supreme Court collegium has taken another unfortunate and questionable decision by shifting Justice Akil Kureshi from the Bombay High Court to the Tripura HC. The decision is questionable for the way it was taken because the collegium seems to have given in to the Union government’s pressure on the matter. The collegium's original decision was to elevate Justice Kureshi as chief justice of the Madhya Pradesh HC. It had made the recommendation to that effect to the government in May but the government sat on it, obviously as a sign of disagreement. It returned the file in August seeking a review of the recommendation. The collegium could have insisted on its recommendation but it chose to reconsider the decision and transfer Justice Kureshi to the Tripura HC. Advocates from the Gujarat HC, where Justice Kureshi had worked earlier, had petitioned the court not to change its decision. Lawyers from other courts have also expressed unhappiness over the collegium’s decision to amend its May resolution.

It is not known whether the change of decision was the result of any consultation between the collegium and the government or even whether the government has accepted the amended decision. Decisions of the collegium on appointments and transfers of judges have never been transparent. When a senior judge like Justice Kureshi, who was to be transferred to a major high court, is instead moved to a small high court, that arouses misgivings and suspicions. There is an impression that the government did not approve the original decision about Justice Kureshi because of his orders like 2010 remanding of current Union Home Minister Amit Shah to police custody and the 2012 upholding of the Gujarat governor’s appointment of the Lok Ayukta without consultation with the state cabinet. There have been other cases also where the appointments or transfers of judges have been delayed or blocked because they had issued orders and judgments which were inconvenient to the government.

The perception that the collegium has not protected the independence of the judiciary and has failed to act without fear and favour in its decisions is gaining ground. The Supreme Court assumed all powers pertaining to judges’ appointments and transfers with the claimed intention to make them immune to political pressure, but it is now seen to be amenable to pressure. The existence of such pressure is clear from the court’s plea to the government "not to interfere" in the appointments and transfers of judges because it "does not augur well for the institution". It is, unfortunately, an admission of pressure and interference by the government in its functioning, and that lowers the credibility of the court and its collegium system.