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The Madras Bar Association on Sunday, 14 November, convened an emergency general body meeting and passed a resolution by majority vote requesting the collegium to reconsider the transfer of Madras High Court Chief Justice Sanjib Banerjee and Justice TS Sivagnanam.
The Collegium had recommended the transfer of CJ Sanjib Banerjee to the Meghalaya High Court, and Justice Sivagnanam to the Calcutta High Court.
In its resolution, the bar association said it was deeply concerned with the opaqueness surrounding the transfers.
“The transfers are perceived to be in violation of Memorandum of Procedure (MOP) for transfer. Such transfers are perceived to be punitive and do not augur well for the independence of the judiciary,” the association said.
The bar association also requested that the Union government, which implements transfers, to decline the collegium’s recommendation to transfer the Chief Justice.
The transfers of the two judges are seen as politically motivated by some critics, as both Justice Banerjee and Justice Sivagnanam have presided over crucial human rights and environment protection cases, and have given orders that are perceived as adversarial to the government, its agencies and interests.
He also pulled up the Greater Chennai Corporation for its efforts to prevent inundation in the city during the recent rains. Justice Sivagnanam meanwhile presided over matters such as the Sterlite issue as well as the Salem 8-lane highway project.
He said that if there was an initiative to transfer a judge, the proposal comes from the Chief Justice of India.
He added that before suggesting a transfer, apart from consulting members of the Collegium as well as those who have worked with the judge, the Collegium is also supposed to consult the judge or the chief justice about what their personal circumstances are. The bar association believes these procedures were not followed in Justices Sanjib Banerjee and Sivagnanam’s cases, Prakash said.
The advocate said he spoke to the members of the bar about the pattern that the Supreme Court says that neither the associations nor the public has a locus standi to question their decision. The concerned judge can sue, but often doesn't because it’s likely it will go before the same judges, some of whom may be members of the collegium, he says.
“When I spoke, I pointed out that though they say there will be a judicial review of the decision making in the instance of the judge if he is aggrieved, in reality, that judicial review is not happening. Unless the Bar Associations are entitled to question this, there will not be any judicial accountability — and that should be placed before persons who are not members of the Collegium. Then, there will be some judicial accountability of an executive function done by the Supreme Court,” the advocate said.
This is not the first time a Madras HC CJ has been recommended for transfer to Meghalaya — which has just three judges against 75 in the Madras court. In 2019, Justice Vijaya K Tahilramani, who was then the Chief Justice of the Madras High Court, was transferred to the Meghalaya High Court. Justice Tahilramani resigned in protest.
(Published in arrangement with The News Minute)
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