Questions for SC: Chief Justice Banerjee’s transfer from Madras HC again points to the opaqueness of collegium

Clipped from: https://timesofindia.indiatimes.com/blogs/toi-editorials/questions-for-sc-chief-justice-banerjees-transfer-from-madras-hc-again-points-to-the-opaqueness-of-collegium/TOI Edit

Times of India’s Edit Page team comprises senior journalists with wide-ranging interests who debate and opine on the news and issues of the day.

The transfer of Chief Justice Sanjib Banerjee from Madras high court to the much smaller Meghalaya HC cannot but raise some questions for the Supreme Court collegium. Chennai lawyers have raised a valid point: What was the rationale behind transferring a CJ who helmed the HC with a sanctioned strength of 75 and was reportedly exemplary in case disposal, despite the pandemic, to a small HC with just four judges? This, when there’s growing case pendency in HCs.

With no answers forthcoming, conjectures abound. All this speculation is unhelpful to judicial morale and is yet another reminder of the collegium system’s opaqueness. Among theories being discussed is whether CJ Banerjee’s critique of EC’s conduct of assembly polls amid the Covid second wave was a factor in his transfer. More substantively, the Madras Bar Association has passed a resolution asking whether norms relating to transfer of HC judges in the Memorandum of Procedure were followed. Paragraph 25.2 of MoP requires the Chief Justice of India to ascertain the views of SC judges knowledgeable of the HC concerned. Paragraph 25.3 directs the CJI and four seniormost SC judges to seek the to-be-transferred judge’s response to the proposal and preferred choices of destination HC.

While these norms have to be respected, the SC collegium may indeed have genuine reasons in transferring CJ Banerjee. But without transparency there are institutional risks, evident in how the outcry by advocates has embarrassed the upper judiciary. While CJI NV Ramana has frequently articulated the importance of safeguarding judiciary’s independence, Madras HC lawyers argue that the Banerjee episode affects the functional autonomy of HCs. The SC bench striking down the National Judicial Appointments Commission had admitted to flaws in the collegium system even while reviving it. Six years have passed without consensus on a new MoP enshrining SC’s promise of transparency in collegium functioning. The frequent controversies dogging judicial appointments all go back to this unfinished agenda.

This piece appeared as an editorial opinion in the print edition of The Times of India.

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