Why High Court Judges Are Transferred: Justice Chelameswar’s Account
“I never understood as even a member of the collegium as to why a particular high court judge is being transferred,” said retired Supreme Court Justice J Chelameswar to BloombergQuint in an interview on the controversy surrounding recent transfers of high court judges.
It is not uncommon for judges to be transferred in India. It is also not uncommon for these transfers to cast doubt on the independence of judiciary and judge probity.
On Wednesday, the government, on recommendation of the Supreme Court Collegium, issued notices to transfer three high court judges. As has happened often over the years, not all the transfers were received well. The decision to move Delhi High Court’s Justice Muralidhar to the Punjab and Haryana High Court prompted the bar association of the Delhi High Court to call a strike opposing the transfer.
Last year, the collegium’s transfer of Chief Justice VK Tahilramani from the Madras High Court to Meghalaya High Court led to her resignation and much controversy over the loss of a renowned judge.
There are no clear parameters detailing the circumstances which warrant transfer of high court judges, Justice Chelameswar explains. He was the second-most senior judge of the Supreme Court of India when he retired in June 2018, and a member of the collegium comprising the Chief Justice of India and the next four senior-most judges who deliberate and recommend appointments, elevations, and transfers to the high courts and the Supreme Court.
In an interview with BloombergQuint, Justice Chelameswar pointed to opacity in the transfer process that left not just the public, but also him as a member within the collegium, in the dark on the rationale behind certain transfers.
Why is a judge transferred? Under what circumstances is a transfer justified? What explains the transfer of a chief justice?
That was precisely my complaint three years back. I never understood as even a member of the collegium as to why a particular high court judge is being transferred. No reasons are ever recorded by the collegium.
Hardly any discussion takes place. No material warranting transfer of a particular judge is ever circulated to the members of the collegium. Sometimes, the item does not even figure in the agenda.
It comes as one of the residuary items in the meeting. Either the Chief Justice of India or one of the other members of the collegium propose the transfer of a particular judge, then the matter is put to voting.
The collegium decides on transfers, with approval from the central government – is it bound to explain reasons or provide a justification for the transfer, to the judge or to the public? Why not?
India is described judicially to be a ‘Quasi Federation’ or ‘Cooperative Federation’, etc. It is one of the peculiar features of the Indian Constitution that it enables the transfer of high court judges by Article 222. It is a legacy of the colonial administrative set-up. It does not provide for the transfer of chief ministers and their cabinet members. Such a provision is not there in the United States.
There are no clear parameters detailing the circumstances which warrant transfer of high court judges. Prior to the Second Judges Case, vary rarely, high court judges were transferred, when the power of transfer vested exclusively with the Union of India, which of course was obliged to ‘consult’ the Chief Justice of India. The only bad experience was transfer of 16 judges during the Emergency. Post the Second Judges Case, when the power is exercised by collegium, transfers became more frequent. There was widespread protest about the transfer of the 16 high court judges during the Emergency. The allegation was that the government of the day was attempting to destroy the independence of the judiciary. I do not know what is the qualitative difference between the transfer of a high court judge, on the recommendation of the collegium.
Maybe, in some cases, there are complaints regarding integrity of a particular judge. Depending upon the gravity of the complaint and the availability of material in support of such allegation, transfer might be justified. But in such cases, I believe, the basic principle of natural justice be complied and the judge concerned must be given an opportunity to explain his case and prove the allegations baseless. The constitutional position declared on several occasions by the Supreme Court is that every action of the State must be informed with reason and that the decision-making process be rational. I believe, that the decision-making process of the judiciary cannot be an exception to the general rule. Somebody in the constitutional system is required to know and examine whether the decision-making process and the decision reached are rational. In the context of the transfer of high court judges, if no reasons recorded, there would be no opportunity to examine the rationality of such decision.
Neither the Parliament nor the government — or for that matter even a future collegium — will be able to ascertain why a high court judge was transferred at a particular point of time. In such a situation, speculation and rumours gain currency, damaging the credibility of the institution.
There can be various irregularities in the conduct of the high court judges. In some cases, it can be lack of integrity and other cases it can be lack of efficiency or simply laziness, etc. The law is absolutely silent as to how to deal with such cases. The text of the Constitution provides only two modes of dealing with the high court judges; impeachment or transfer. Nothing prevents the Parliament from making laws to deal with different categories of unwholesomeness in the conduct of high court judges by creating an appropriate disciplinary regime. So long as such a regime is not created, it is free for both the collegium and the government to deal with high court judges as they please.
Even in the case where the collegium recommends the transfer of a judge, it is not unknown that the government simply does not act on the recommendation, when it does not want to. It is a matter of record. What is not a matter of record is when the suggestion comes from the government, obviously, the communication is only to the Chief Justice and I ‘suspect’, more often than not, it is oral and not in writing. There is no way to ascertain exactly what the reasons are, which triggered such a suggestion. I believe that in constitutional theory, the elected government is entitled to make such a suggestion, provided they have tenable material, and share it with the collegium.
The three-judge bench of the K Ashok Reddy case held that the power of transfer can be exercised only in “public interest”, i.e. for promoting better administration of justice throughout the country. It noted that transfers in accordance with the recommendation of the Chief Justice of India cannot be treated as punitive or an erosion of the independence of the judiciary.
They are pious hopes. My experience as a member of collegium tells me the meaning of ‘public interest’, ‘promotion of better administration of justice’ are absolutely nebulous words without meaning anything and in practice, at least in some cases, simply lead to the transfer of high court judges who are inconvenient to the government, or to one of the members of the collegium.
There was also the Sankal Chand Himatlal Sheth case of 1977, where the Supreme Court said sometimes transfer of a judge becomes a compulsion because of close nexus he develops with local interests. How does that get addressed?
We have known many instances where the children of the Supreme Court judges are practicing in the Supreme Court. Where will they be transferred? Therefore, transfer is not the solution if there is any problem with a high court judge.
Are transfers increasingly being wielded as a political tool, to reward, punish and force abdication? Also, what do you make of the recent events at the Bombay High Court, where four judges will move out in quick succession?
It did not happen in Bombay High Court alone. Such incidents have happened in many high courts on many occasions in the last 30 years.
So, as a follow up to the first step taken in 2017 to post the recommendations of the collegium in public domain, you believe that the next step is to document all this—even if that is not to be put to the public because of all it can’t be.
As a result of this perceived arbitrariness of this, judges refuse transfers to far-flung high courts and resign. Or, bar associations protest vigorously against such transfers. What’s your view on what’s happening?
The bar associations’ reactions in some cases is a matter of the bar’s privilege. Coming to the resignation of some of the judges, once again I say that it is a matter of their personal choice. Resignation of an otherwise competent and upright judge would be a loss to the system and certainly detrimental to the larger public interest. Apart from that, it damages the credibility of the judicial administration.
When I talked about these things while I was still in the office, very honorable members of the profession believed that I had an agenda behind it, and prayed that “God save the Honourable Supreme Court”. I guess that with my departure from the court, everything is in order and requisite ‘decorum’ and ‘collegiality’ are prevailing. All is well with the Indian judiciary. Please don’t waste time – yours and the nation’s – by getting into unnecessary discussions.