The recent chain of events involving transfer of several High Court Judges and their intricate and suspicious history with the incumbent government is reminiscent of the frequent transfers of the 70s’ which ultimately led to some of the darkest days of Indian judiciary. The onus now lies on the Indian judiciary to take steps to improve its image and credibility among the people.
While the Hon’ble Supreme Court has had its share of problems in the past year, the more pertinent questions lie in the frequent transfers of High Court judges that have taken place in the past year. While NJAC has been buried in the past now, the focus shifts back towards the complex model of judicial appointments, further aggravated by the Supreme Court judgments on appointments & transfer of judges in 1982, 1983, 1998 and 2015, the government has technically only a small share of the deal in the appointments. However, it remains in doubt as to how much effective control is exercised by the government and the executive. The transfer of judges starting from their appointment process has always been a bone of contention with bitter experiences of the period of Emergency when judges were selected on the basis of their political loyalty to Mrs. Indira Gandhi leading to euphemisms of committed judges and ‘judges looking forward’ (to posts and entitlements) than forward-looking judges.[1]
The independence of the higher judiciary is ensured in our Constitution by providing for the salaries of the judges, administrative expenses, recruitment under the Consolidated Fund of India[2]. Moreover, the appointment of the judges is not the sole prerogative of the Executive and the judiciary has a substantive role in the appointment procedure.[3] The legislative history with regard to the transfer of judges as provided by G. Ajith Kumar is:
When the Constitution was being drafted, the Drafting Committee did not incorporate any provision for transfer in the Draft Constitution. But, Clause (c) of the’ proviso to Article 193(1) of the Draft Constitution had copied Section 220(2)(c) of the Government of India Act and this provided for vacation of office of a judge on his being appointed by the President to be the judge of the Supreme Court or of any other High Court. During the discussion of the Draft Constitution in the Assembly, an amendment was ‘moved by two members, Mr. R. R. Divaker and Mr. V. V. Krishna Moorthy Rao. They suggested the introduction of para (d) of the proviso to Clause (1) of Article 193 providing that “Every judge of the High’Court shall be liable to be transferred to other High Courts.” 22 But the Drafting Committee felt that this amendment was unnecessary because there was no bar under Article 193 to a judge of one High Court being appointed a judge of another High Court, and clause (c) of the proviso to Clause (1) of Article 193 clearly provided that the office of the judge shall be vacated by his being appointed by the President to be a judge of the Supreme Court or of any other High Court.
Later, when the State Reorganisation Act 1956 was passed, it was felt that the provision for compensatory allowance cannot be provided to facilitate the transfer of judges to newly constituted high courts, however it was reintroduced again in 1963. The Supreme Court had three landmark cases with respect to this which decided on the interpretation of the conditions and the background under which the transfers can be made. However, the conditions and the background remain the dead letter of the law if we consider the actions of the government in the recent past.
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Justice Jayant Patel was transferred to Allahabad High Court overlooking his seniority which could have promoted him to Supreme Court or at least Chief Justice of a High Court.[4] Interestingly, he gave the verdict in the Ishrat Jahan case and monitored the investigation that led to naming of top officials of Intelligence Bureau (IB) and Gujarat Police.[5] Things become even more interesting when we consider the fact that he became a judge of the Gujarat High Court in 2004 and became the Acting Chief Justice of the same High Court from August 13, 2016. Ideally, he should have become the Chief Justice subsequently, however he was transferred to the Karnataka High Court where he was the second most senior judge and hence, should have been the Chief Justice once the senior-most judge retired. However, as we all know, he was then transferred to the Allahabad High Court where he would have been the No. 3 in the list of seniority effectively ending his chances at being a Chief Justice of a High Court or a judge of the Supreme Court.
Similarly, Justice Abdul Hamid Kureshi was transferred from Gujarat High Court to Bombay High Court following which the Gujarat HC passed a unanimous resolution condemning the transfer since Justice Kureshi ordered the custodial remand of Amit Shah. The list is endless with the likes of Justice Rajiv Shakdher of the Delhi High Court and Justice Abhay Thipsay of Bombay High Court’s transfer orders also making it to the list of suspicious orders.[6]
The most interesting case in recent history is of Former Chief Justice of the Madras High Court Justice Vijay K. Tahilramani to the Meghalaya High Court for better administration and which was further reiterated to be based on ‘cogent reasons’.[7] There were protests against the transfer by the bars both in Madras as well as Bombay with few linking the move to her judgment given in the Bilkis Bano gangrape case where she upheld the life imprisonment of 11 people, that irked the then government.[8] However, later former Supreme Court judge and former Madras High Court Chief Justice Markandey Katju revealed that the primary reasons for such a transfer is because of her short working hours and her work ethic was having adverse impacts on the working on the rest of the bench in the Courts. Hence, she was transferred to a court with relatively little work.[9] Following this, the Chief Justice of India Hon’ble Justice Ranjan Gogoi has asked Central Bureau of Investigation to take action on reports of Justice Tahilramani’s Financial Irregularities based on the IB’s five page report which higlights alleged irregularities in the purchase of two flats in Chennai, her decision to dissolve a high court bench investigating idol theft cases and her close proximity to a State Minister in Tamil Nadu who is said to have influenced the former decision.[10]
However, it is not the first time the courts in the North-East have been used as the centers for ‘punishment posting’, resulting in the respective State and North-East bar refusing to accept such ‘tainted’ judges.[11] In the past, the Guwahati High Court in Assam has been used as a ‘dumping ground’ for corrupt judges from the North which has resulted in the Bar being righly agitated by such actions.[12] Admittedly, the Madras High Court is a Chartered Court with a strength of 75 judges while the Meghalaya High Court is a three judge Court, however does that entitle the top judiciary of the country to deprive the people of Meghalaya and the rest of the North East? Why should the burden be levied on the less deprived or powerful states of the North-East for the sake of “better administration” or “national integration”?
Coming to the larger question, it needs to be seen if transferring the judges without their consent ensures accountability and transparency in a system that is tainted with allegations of corruption and nepotism? Supreme Court Judge Hon’ble Justice DY Chandrachud has also reiterated similar concerns stating that there needs to be a solution mechanism to such complaints which we are presently lacking.[13] The need for specific categories of punitive steps between impeachment and transfer needs to be developed in order to deal with cases that are deemed fit at this level. Ironically, the statement comes on the face of the observations made in Supreme Court Advocates-On-Record Association and Others v. Union of India & S.P.Gupta v. Union of India that any transfer of a High Court judge made on the recommendation of the Chief Justice of India and the collegium system is not to be deemed to be punitive and such transfer is not justiciable on any ground.[14] These are tough questions facing government pressure of influence and people’s aspirations on decision making and productivity. But most importantly, it faces the test of trust in the very court of law of a billion Indians.
[1] Sumanta Banarjee, ‘Judging the Judges’ (Economics and Political Weekly, December 2002 Vol. 37 No. 50) 4983.
[2] Constitution of India, Article 124, 224, 229.
[3] Constitution of India, Article 124, 217.
[4] Prof. M. Sridhar Acharyulu, ‘Should Judges Go By Rule of Law or Ruler’s Law’ (LiveLaw, 12 September 2019) <https://www.livelaw.in/columns/judges-go-by-rule-of-law-148008> Accessed on 1 October 2019.
[5] Ibid.
[6] Rajeev Dhawan, ‘View: Why HC judges can’t be transferred according to whims and fancies’ (The Economic Times, 29 September 2017) <https://economictimes.indiatimes.com/news/politics-and-nation/view-why-government-cannot-transfer-hc-judges-according-to-whim-fancy/articleshow/60876393.cms?from=mdr> accessed on 1 October 2019.
[7] The Wire Staff, “CJI Gogoi asks CBI to take action on Report on Justice Tahilramani’s ‘Financial Irregularities’” (The Wire, 30 September 2019) <https://thewire.in/government/tahilramani-transfer-ranjan-gogoi-cbi> accessed on 1 October 2019.
[8] Ibid.
[9] Markandey Katju, ‘The Truth about transfer of Madras HC Chief Justice Tahilramani’ (TheWeek, September 12, 2019) < https://www.theweek.in/news/india/2019/09/12/opinion-the-truth-about-transfer-of-madras-hc-chief-justice-tahilramani.html?fbclid=IwAR1aJDA-xKQplnOztkEnxuX6FjSuFt2CH5w26SDVBDqNjtya3xU8tzTsB_8> accessed on 1 September 2019.
[10] The Wire Staff, “CJI Gogoi asks CBI to take action on Report on Justice Tahilramani’s ‘Financial Irregularities’” (The Wire, 30 September 2019) <https://thewire.in/government/tahilramani-transfer-ranjan-gogoi-cbi> accessed on 1 October 2019.
[11] Rajeev Dhawan, ‘View: Why HC judges can’t be transferred according to whims and fancies’ (The Economic Times, 29 September 2017) <https://economictimes.indiatimes.com/news/politics-and-nation/view-why-government-cannot-transfer-hc-judges-according-to-whim-fancy/articleshow/60876393.cms?from=mdr> accessed on 1 October 2019.
[12] Sumanta Banarjee, ‘Judging the Judges’ (Economics and Political Weekly, December 2002 Vol. 37 No. 50) 4983.
[13] Livelaw Team, ‘Transfer of Judges Not a solution For Complaints against them: Justice Chandrachud’ (Livelaw, 25 September 2019) < https://www.livelaw.in/top-stories/transfer-of-judges-not-a-solution-for-complaints-against-them-justice-chandrachud-148416> accessed on 1 October 2019.
[14] Livelaw Network, ‘Only transferred Judge can challenge, No one else’: Madras HC rejects plea Challenging Justice VK Tahilramani’ (Livelaw, 28 September 2019) < https://www.livelaw.in/news-updates/madras-hc-rejects-plea-challenging-justice-vk-tahilaramani–148546> accessed on 1 October 2019.
This article is authored by Ritesh Patnaik, student of B.A. LL.B (Hons.) at National Law University Delhi
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