When Emergency was imposed in1975, 9 High Courts across the country, in probablythe finest hour of the Indian judiciary, took a firm stand that even in theface of lawless tyranny, they would uphold the right to life and liberty of thecitizenry.
When these cases were appealed tothe Supreme Court, what followed was easily the darkest moment in the historyof Indian judiciary, as the Supreme Court overturned these verdicts, giving the government legitimacy to detain and shoot dead anyone during Emergency. Eventhe judges of the High Courts who gave the overturned verdicts were not spared- 16 of them were banished by the Central Government of the dayfrom their “home” high courts to serve their terms in distant parts of thecountry, far from their families and against their will.
It is perhaps this history thatplayed on the minds of many when news of the transfer of the Uttarakhand High Court Chief Justice KM Joseph to the Andhra Pradesh High Court was madepublic. The transfer was linked, almost immediately, to the stinging judgement he had delivered againstthe imposition of President's Rule in Uttarakhand, setting it aside and callingthe deposed CM Harish Rawat to prove his majority on the floor of the legislative assembly. Social media was abuzz with talk of the governmentpenalising an independent-minded judge for having delivered a judgement againstit.
Was the Centre Vindictive?
It sounds like a nice conspiracytheory but one that falls apart on even the most basic examination. For astart, transfersare carried out by the President on the recommendation of the Supreme Court'sfive senior-most judges, the “collegium” as they're better known.Even though the Constitution vests the power to transfer judges with the president, as with appointments, he acts only on the recommendation of thecollegium. The president can only ask the judges to reconsider but cannotcompel them to transfer a judge as per his or the central government's whims.
Perhaps the central governmentput pressure on the collegium to transfer him, through means fair and foul, wondered some.
This too doesn't stand scrutinysince the Supreme Court itself seems to be coming around to theview that the Uttarakhand High Court judgement was right and a“floor test” would be the best way to assess the political situation in the state. It defies logic that a government which exercises such influence overthe court would not use it to win the case, but petulantly “punish” the judgewho has already delivered the judgement.
Transfer Policy for Judges
- Though the president is entrustedwith the authority to transfer judges, he acts only on the recommendation of thecollegium comprising five senior-most judges from the Supreme Court.
- Conspiracy theory that the Centrepunished Uttarakhand High Court Chief Justice KM Joseph doesn't hold ground asthe order was upheld by the Supreme Court on May 6.
- Justice Joseph's transfer wasaccompanied by the elevation of three high court justices to theSupreme Court which further lends credence to the fact that collegium and notthe executive played a major role in these transfers.
- In order to make transfer policy of judges moretransparent, administrative reasons behind transfer should be put in publicdomain.
Busting the ‘Punishment' Theory
Even the view of this transferbeing a “punishment” doesn't hold. In the past, transfers have been used to“punish” judges away from their “home” high courts -- where they were initiallypractising and had been elevated to the high court. Justice Joseph is from theKerala High Court.
As is the normal practice, the chief justice of a high court is almost always someone who was elevated to the bench in a different high court. It is not even a case where a chief justice has been transferred to a less prestigious or lower profile high Court as “punishment”. By any measure, the Andhra Pradesh High Court would not be considered less prestigious than the Uttarakhand High Court.
Even if one ignores the hearsaythat Justice Joseph had himself requested the transfer on health grounds, thefact remains that the allegation that his transfer was in some way a“punishment” imposed by the central government just does not stand.
A cold examination of the factswould show that whenever chief justices of existing high courts are elevated tothe Supreme Court, there's a shuffling of chief justices that usuallyaccompanies this, mostly for administrative reasons. The fact that the SupremeCourt also just recommended the elevation of three Chief Justices of High Courts to theSupreme Court is probably the simpler, more prosaic explanation toJustice Joseph's transfer.
The merits of Justice Joseph'stransfer aside, the controversy over transfer of high court judges is aworrying phenomenon that affects the image of the judiciary. Two other recenttransfers of judges away from their “home” high courts, that of Justice RajivShakder from the Delhi High Court and Justice Thipsay from the Bombay HighCourt, have raised eyebrows in the legal community. Dark rumours have gainedground that the transfers were made for reasons that had nothing to do with theadministration of the judiciary.
Citing Reasons Behind the ‘Transfer' Publicly
Transfers aren't necessarily for“disciplinary reasons”. They can be requested by the judge or made as part ofa promotion to the post of chief justice. When it is neither of thesesituations, questions are immediately raised as to why a judge wastransferred out of her “home” high court. The problem is compounded by the factthat the collegium simply doesn't believe in the principles of transparency andaccountability in its decision-making.
If a judge has been transferred for disciplinary reasons, the litigating public and the bar must be made aware of what those disciplinary reasons are. And if it is for purely administrative reasons, the reputation of the judge must be protected by giving out the correct reasons for the transfer.
Both of these are compellingreasons as to why transparency is so important in the matter of transfer of high court judges. When, in exercise of its power of judicial review, the courtdemands full disclosure and reasons by the government, it surelybehoves the same court to comply with the very standards it expects of the government.
The current status quo, whereinnuendo, gossip and rumour take the place of facts and reasoned debate ontransfer of judges, only harms the credibility of the collegium. It is high timethat the collegium sees the folly of its path and moves to put the reasons fortransfer of judges on record.
There's no place for omerta inthe judiciary.
(The writer is a Senior Resident Fellow at Vidhi Centre for Legal Policy)
Also read:
Uttarakhand Row: The Sordid Tale of a Govt's ‘Constitutional Sin'
Uttarakhand Row Likely to Keep the Govt on Its Toes in Parliament
Essential Business Intelligence, Continuous LIVE TV, Sharp Market Insights, Practical Personal Finance Advice and Latest Stories — On NDTV Profit.
