Transfer of High Court Judges in India has a Sordid History

Uttarakhand HC Chief Justice KM Joseph’s transfer exposes lack of judicial transparency, writes Alok Prasanna Kumar.

When Emergency was imposed in 1975, 9 High Courts across the country, in probably the finest hour of the Indian judiciary, took a firm stand that even in the face of lawless tyranny, they would uphold the right to life and liberty of the citizenry.

When these cases were appealed to the Supreme Court, what followed was easily the darkest moment in the history of Indian judiciary, as the Supreme Court overturned these verdicts, giving the government legitimacy to detain and shoot dead anyone during Emergency. Even the judges of the High Courts who gave the overturned verdicts were not spared - 16 of them were banished by the Central Government of the day from their “home” high courts to serve their terms in distant parts of the country, far from their families and against their will.

It is perhaps this history that played 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 made public. The transfer was linked, almost immediately, to the stinging judgement he had delivered against the imposition of President’s Rule in Uttarakhand, setting it aside and calling the deposed CM Harish Rawat to prove his majority on the floor of the legislative assembly. Social media was abuzz with talk of the government penalising an independent-minded judge for having delivered a judgement against it.

Was the Centre Vindictive?

It sounds like a nice conspiracy theory but one that falls apart on even the most basic examination. For a start, transfers are carried out by the President on the recommendation of the Supreme Court’s five 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 the collegium. The president can only ask the judges to reconsider but cannot compel them to transfer a judge as per his or the central government’s whims.

Perhaps the central government put pressure on the collegium to transfer him, through means fair and foul, wondered some.

This too doesn’t stand scrutiny since the Supreme Court itself seems to be coming around to the view 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 over the court would not use it to win the case, but petulantly “punish” the judge who has already delivered the judgement.

Transfer Policy for Judges

• Though the president is entrusted with the authority to transfer judges, he acts only on the recommendation of the collegium comprising five senior-most judges from the Supreme Court.
  
• Conspiracy theory that the Centre punished Uttarakhand High Court Chief Justice KM Joseph doesn’t hold ground as the order was upheld by the Supreme Court on May 6.
  
• Justice Joseph’s transfer was accompanied by the elevation of three high court justices to the Supreme Court which further lends credence to the fact that collegium and not the executive played a major role in these transfers.
  
• In order to make transfer policy of judges more transparent, administrative reasons behind transfer should be put in public domain.
  

Busting the ‘Punishment’ Theory

Even the view of this transfer being a “punishment” doesn’t hold. In the past, transfers have been used to “punish” judges away from their “home” high courts -- where they were initially practising and had been elevated to the high court. Justice Joseph is from the Kerala 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 hearsay that Justice Joseph had himself requested the transfer on health grounds, the fact 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 facts would show that whenever chief justices of existing high courts are elevated to the Supreme Court, there’s a shuffling of chief justices that usually accompanies this, mostly for administrative reasons. The fact that the Supreme Court also just recommended the elevation of three Chief Justices of High Courts to the Supreme Court is probably the simpler, more prosaic explanation to Justice Joseph’s transfer.

The merits of Justice Joseph’s transfer aside, the controversy over transfer of high court judges is a worrying phenomenon that affects the image of the judiciary. Two other recent transfers of judges away from their “home” high courts, that of Justice Rajiv Shakder from the Delhi High Court and Justice Thipsay from the Bombay High Court, have raised eyebrows in the legal community. Dark rumours have gained ground that the transfers were made for reasons that had nothing to do with the administration 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 of a promotion to the post of chief justice. When it is neither of these situations, questions are immediately raised as to why a judge was transferred out of her “home” high court. The problem is compounded by the fact that the collegium simply doesn’t believe in the principles of transparency and accountability 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 compelling reasons 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 court demands full disclosure and reasons by the government, it surely behoves the same court to comply with the very standards it expects of the government.

The current status quo, where innuendo, gossip and rumour take the place of facts and reasoned debate on transfer of judges, only harms the credibility of the collegium. It is high time that the collegium sees the folly of its path and moves to put the reasons for transfer of judges on record.

There’s no place for omerta in the 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