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The collegium has already been compromised by executive power (and opacity), argues Dushyant Dave

Senior counsel Dushyant Dave, writing in The Wire, has criticised a number of recent decisions of the Supreme Court regarding judicial elevations and transfers, for having been as opaque (as ever) and having missed out on obvious candidates, suggesting that executive pressure scuppered the elevations of several judges who’d handed down decisions the government wouldn’t have liked.

Dave wrote:

But the recent decisions on the appointment of judges by the collegium leave much to be desired. The cases of Justice KM Joseph, chief justice of the Uttarakhand high court, and Justice Jayant Patel, the senior most puisne judge of the Karnataka high court, are classic examples of the destruction of the “legitimate expectations” of two of the most independent judges in the country. Both seem to be paying the price for their independent judgments in the president’s rule case in Uttarakhand and Ishrat Jahan’s case in Gujarat. These judgments are unpalatable to the Narendra Modi government at the Centre. Though Chief Justice Joseph was earlier slated to be transferred to Andhra Pradesh by a decision of the previous collegium to which some of the members of the present collegium are party, it has not been implemented. He deserved to be elevated because the law seeks to “select the best from amongst those available”. This is not to comment on the merits of the five recent appointees to the Supreme Court who are equally outstanding. But there are three more vacancies in the Supreme Court today. So why was Chief Justice Joseph excluded?

For no reason he is not being confirmed as chief justice although the previous collegium had recommended the transfer of the incumbent chief justice out of Karnataka to facilitate the appointment of Justice Patel, appointed on December 3, 2001, is senior to four of the five recent appointees.

In the same article, Dave also outlined and frowned upon the following cases of judicial transfers (or lack thereof):

Take the case of Justice Hemant Gupta, acting chief justice of the Patna High Court, who, according to reports, is being appointed chief justice of the Madhya Pradesh high court. Justice Gupta is facing allegations about financial impropriety on the part of his family members which have resulted in an investigation by the Enforcement Directorate. Newspaper reports state that Justice Gupta has directly “obstructed justice” by interfering in those investigations. So why even consider him and send him to a state whose chief minister is facing serious charges in the Vyapam scam, which has resulted in the death of over 12 people?

Equally disturbing is the case of Justice MR Shah of the Gujarat high court. The previous collegium had recommended his transfer to Madhya Pradesh almost a year ago. He continues to be in Gujarat because the Modi government did not agree to the recommendation. The present collegium is a mute spectator to that.

Justice Shah had rendered a judgment in 2009 paving the way for the appointment of Amit Shah as president of the Gujarat Cricket Association. History bears witness to the fact that those who decided the cases of Amit Shah in his favour were rewarded with positions of governor and Law Commission chairman. Interestingly, on March 24, 2011, Justice Shah and his family attended the India-Australia World Cup cricket quarter-final match at the Sardar Patel Stadium, Ahmedabad, in the president’s gallery and were received by Amit Shah’s son and an eminent lawyer. I too was there to watch the match in the president’s gallery.

Questions are also being raised about the decision to elevate Justice S. Abdul Nazeer, an outstanding judge, when a senior and an equally outstanding judge was available in Justice Badar Durrez Ahmed for elevation to the Supreme Court.

Read the full article at The Wire.

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