Collegium Must Reveal Reasons for Justice Jayant Patel’s Transfer

Supreme Court of India.

(Photo: Reuters)

In 2016, Justice Jayant Patel was transferred from Gujarat to the Karnataka High Court. And in September 2017, he was sought to be transferred from Karnataka to the Allahabad High Court. He resigned, only saying that he wanted to be “relieved from the institution.”

Justice Patel was not obliged to give any reason for his resignation. His transfer was reason enough. But, was there any reason for his transfer? A judge is no plaything nor is the process of his transfer a non-productive activity undertaken independently of rules simply for the thrill of playing with the institution. In not citing any reason, Justice Patel pointed to the pointlessness of reasons in an area outside the boundaries of judicial freedom where private opinion, not law, humor not sense or wisdom, and arbitrariness not regularity of procedure govern.

Had the decision been of the executive, it would have been struck down in judicial review.

In this case, we must presume, as the Collegium of judges has decided, that for reasons unknown, the transfer was for good cause and the principle of independence of judiciary mandates we keep silent and hold our peace.

Before the Collegium era, the Supreme Court had the opportunity to address this issue in the Sankalchand case, where the transfer of a judge from Gujarat to Andhra Pradesh was challenged. The court held there was no power to transfer out of “whim, caprice or fancy of the executive.” Transfer was not to be used as a tool to “bend a judge” to the executive's way of thinking. Nor was it a “punishment” for a judge who “does not toe the line of the executive” or “has fallen from its grace”.

Transfer was meant only to “subserve public interest.” And, “executive intrusion” in the process was taken care of through “effective consultation” with the Chief Justice of India, an “institutional protection” straight-jacketing the exercise of the power of transfer.

This consultation, to satisfy “normative function”, required the Chief Justice not only to collect necessary information from “responsible channels” and “directly” acquaint himself with requisite data to take an action which furthers public interest “especially the cause of the judicial system”, but also “informally ascertain” from the judge concerned if he has any personal difficulty or there are “any humanitarian grounds on which transfer may not be effected.”

The power could not be exercised “arbitrarily or whimsically”.

Judicial review was available if the consultation was “illusory” there was “ulterior purpose or non-application of mind” or the power was exercised “mala-fide”.

The principles were reiterated in SP Gupta (First Judges' case). The court held that the injury, inconvenience, and difficulty consequent upon transfer should be “inconsequential” in view of the “larger public interest” for which transfer was to be ordered, a view shared by the majority of the judges in the said case. The First Judges' case, though denying primacy to the Chief Justice, held that the opinion of the Chief Justice was entitled to “great weight” and could not be departed from except for good cause.

This requirement permitted judicial review of the order of transfer.

The executive was sought to be excluded from having the decisive say in the process of appointment and transfer altogether with the establishment of the primacy of opinion of the Chief Justice of India formed collectively through the collegium (formed in the Second and enlarged in the Third Judges’ case) representing “the opinion of the judiciary” having the element of plurality in its formation and “determinative in the matter of transfer”, thus eliminating altogether the “intrusion” of the executive from the process.

The consultation was to include the Chief Justices of the High Courts concerned and other Supreme Court judges, as they would be “in a position to provide material which would assist in deciding whether or not the proposed transfer will take place”, the material of which had to be available in writing for consideration by the collegium.

However, now the issue was no longer justiciable and there was no redress available as long as the collegium took the decision in the manner stipulated notwithstanding the decision of the collegium being vitiated for being illusory, whimsical, mala-fide.

And this “primacy” of the judiciary was held to be so pre-eminent as to be part of the Basic Structure of the Constitution that an alternative mechanism, which was sought to be introduced through the 99th Amendment of the Constitution, was struck down as an unconstitutional check on the authority of the Chief Justice of India as an individual and the judiciary as an institution in the National Judicial Appointments Commission judgment.

Justice Patel has been transferred when the process, as it stands, permits no interference by the executive and has no redress if the judiciary wrongs its own.

It will make little sense to link the transfer to the Ishrat Jahan case unless it is further assumed that the collegium is acting at the behest of the executive. And the only way to dispel this notion is to reveal the reasons for the transfer. The threshold against disclosure has reduced significantly as Justice Patel has resigned.

The spelling out is imperative because the legally recognised justifications for transfer do not seem to be attracted to Justice Patel’s case. The transfer of a judge has to be in “rarest of rare” cases. In Justice Patel’s case, there have been two. The “pressing reasons” (referred to in the Second Judges’ case), which alone can justify a second transfer, cannot be fathomed more so when just 10 months of his tenure are left.

There is no information in public domain of him being part of any “circle of favourites” from which he had to be withdrawn. If there was any “compelling administrative exigency”, then the same need not have been kept secret and would be known. There was no “fractious” atmosphere in the court necessitating his transfer.

And, it cannot conceivably be said that the transfer is in the “interest of justice” and “better administration of the judicial system” when lawyers are unanimous that Justice Patel’s integrity is unquestionable and there are vacancies in the Karnataka High Court from which he has been transferred.

It is thus evident that the “unwholesomeness” of the process, which Justices Chelameswar and Gogoi (both of whom are part of the collegium) referred to in their supplementing judgment in the Karnan case, is not limited to “selection” of judges only. And if the process is unwholesome, both with regards to selection and transfer, how is the primacy of the judiciary guaranteeing its independence?

As Dias on Jurisprudence writes, power-wielders are not immune from compliance with their own dictates. Nor can they become a closed circle. Rule of law, after all, is meant to prevent misuse of power and cannot possibly sanctify the misuse as law!

(This article was first published in BloombergQuint)

(Aman Lekhi is a senior advocate at the Supreme Court of India and writes on constitutional and commercial law issues. The views expressed here are those of the author’s and do not necessarily represent the views of The Quint or its editorial team)