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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
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.
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.