Govt dilutes clause on transfer of High Court judges over conflict of interest

The procedure for transfer of a high court judge, including the chief justice, is provided under Article 222 of the Constitution. The proposal for a transfer has to be made by the Chief Justice of India.

Written by Utkarsh Anand | New Delhi | Published:July 31, 2016 5:51 am
Supreme court, Supreme court collegium, Judges transfers, transfer of judges, Transfer of high court judges, High court, High court judges, Chief justice of india, CJI, TS Thakur, CJI TS Thakur, Sushma Swaraj, External Affairs minister Sushma Swaraj, Prashant BHusan, Sadananda Gowda , india news The CJI retained the discretion to decide on transfer of a judge, irrespective of whether the judge’s relatives are lawyers in the same court.

EVEN AS the tussle between the Centre and higher judiciary over the revised Memorandum of Procedure (MoP) for appointments to higher judiciary continues, the government has given in to the Supreme Court collegium on an important clause regarding transfer of high court judges over conflict of interest.

The law ministry’s latest draft, dated June 21, shows that the government has accepted the collegium’s view to do away with a stipulation on compulsory transfer of high court judges if their relatives are practising in the same court.

The procedure for transfer of a high court judge, including the chief justice, is provided under Article 222 of the Constitution. The proposal for a transfer has to be made by the Chief Justice of India.

The previous MoP said “all transfers are to be made in public interest i.e. for promoting better administration of justice throughout the country”.

However, the government sought a change in the MoP. In its draft prepared in May, the government proposed that “transfer of a judge from one high court to another may be recommended only on account of administrative exigencies, conflict of interest with relatives practising at the Bar, or at the request of the concerned judge.”

Objecting to this, the collegium said the words, “conflict of interest with relatives practising at the Bar”, were “not acceptable”. It wanted this to be substituted with, “on the ground of conflict of interest if the situation so
demands”.

The proposed change connoted two things. First, it removed the condition that a judge would have to be compulsorily transferred if his relatives are practicing in the same court. Second, the Chief Justice of India retained the discretion to decide on transfer of a judge, irrespective of whether the judge’s relatives are lawyers in the same court.

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It is understood that the government climbed down from its stated position after Chief Justice of India T S Thakur and Union External Affairs Minister Sushma Swaraj, who leads the inter-ministerial group on the MoP, discussed this issue.

When Swaraj and then Union Law Minister D V Sadananda Gowda met the CJI last month, they communicated to the collegium that the government had agreed to dilute the clause on mandatory transfer of such judges.

The government, in its response, said it had accepted the collegium’s view and the previous provision on transfer of judges would be retained. It agreed to the collegium’s suggestion that the clause should read, “on the ground of conflict of interest if the situation so demands.”

Meanwhile, advocate Prashant Bhushan, who argued for NGO CPIL in the batch of cases that culminated in quashing the National Judicial Appointments Commission (NJAC), said the judges should be shifted out if their immediate relatives were practising in the same court. “I am of the view that it would be improper if a judge continues when his immediate relatives, including spouse, children, siblings and parents, are practicing in the same court,” he said.

Bhushan added that the MoP can be challenged if it is violative of the Supreme Court judgment or threatens any fundamental principle of the Constitution.

“Judges have to be moved out if their kith and kin are practicing. When the judges’ sons and daughters are practicing in the same court, we often see them getting engaged on the best of panels of the government. Everybody knows who they are and they try to appease them,” said Delhi High Court Bar Association president Rajiv Khosla.

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  1. M
    Maniktripathy
    Jul 31, 2016 at 4:33 am
    Wow...And we say Judiciary is supreme and with this clause gone, we say Judiciary is as corrupt as other branches and no wonder recent judgements reflect the same...Mockery of democracy and banana republic in making...
    Reply
  2. S
    Sanjay
    Jul 31, 2016 at 2:53 am
    💥!!रोजगार सूचना!!💥lt;br/gt;lt;br/gt;✅भारत में पहली बार घर बैठे कमाये 15,000 - 50,000 हर महीने बिना किसी खर्च केlt;br/gt;✅मोदी जी द्वारा चलाए गए डिजिटल इन्डिया से जुड़े और कमाए हर महीने 15,000 - 50,000 रुपएlt;br/gt;✅दुनिया का पहला बिजनेस जिसे आप फेसबुक और व्हत्सप्प के द्वारा कर सकते हैंlt;br/gt;✅टोटली फ्री ज्वानिंग हैlt;br/gt;✅कमाया हुआ पैसा सीधा बैंक मे ट्रान्स्फरlt;br/gt;lt;br/gt;बिजनेस की शुरुवात कैसे करेlt;br/gt;✅C.h'a.m'p`C.a's.h को प्ले स्टोर से इन्स्टल करे, और साइन अप करे, $1 डॉलर बोनस स्पौन्सर ID: 5 6 2 5 2`9lt;br/gt;✅चैलेंज को पूरा करेlt;br/gt;✅और इंकम करनी शुरू करेlt;br/gt;➡जरूरी ⬅lt;br/gt;C.h'a.m'p`C.a's.h स्पौन्सर ID: 5 6 2 5 2`9lt;br/gt;lt;br/gt;lt;br/gt;lt;br/gt;lt;br/gt;lt;br/gt;lt;br/gt;.lt;br/gt;.sjbsg
    Reply
  3. D
    deendayal lulla
    Jul 31, 2016 at 11:40 am
    Nepotism is there in other fields also.
    Reply
  4. H
    H.Balakrishnan
    Jul 31, 2016 at 5:03 am
    NEPOTISM reigns supreme with our judiciary. That's the message from this report.
    Reply
  5. S
    Sankaran Krishnan
    Jul 31, 2016 at 10:36 am
    Let us hope the Judiciary will not misuse the clause that diluted by the Govt. and hope CJI acts tough when it comes to deal with kith and kins or relatives and friends comes into the picture and decide accordingly.
    Reply
  6. s
    sri.s
    Jul 31, 2016 at 4:44 am
    With the cloak of neutrality judiciary make 'nepotism' or 'chances of it' okay. Why should judges object to make judiciary clean. They should make sure there is not even a wrong/ mis- perception of nepotism.
    Reply
  7. S
    svsharma
    Jul 31, 2016 at 10:11 am
    I request President of India,Prime Minister of India,Law Minister of India,Chief Justice of India ,the w Parliment through respective speakers and Chairman Bar Council of India, and all state Bar Councils ,to see what is being proposed and accepted in the matter of transfer policy of the high Court Judges,In my view the judges whose kith and kins,sons, daughter, wife,husband are practising ,they should be compulsorily transferred out ,if not then all the transfers in the country should be stopped forthwith and the Public money should be avoided from being wasted in transfer ,joining time claims including the Army personnel.It is claiming like a seperate state and status ,above law, above consution above and independent of all provisions and spirit of laws.
    Reply
  8. S
    svsharma
    Jul 31, 2016 at 4:16 pm
    It is shameful for the Modi Govt to have accepted this otherwise the Modi Govt should stop all the transfers ,this was my plea and representation that the Uncle judges should be invariably transferred
    Reply
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