Opinion The Bar and the Bench

Later, Justice Desai went on to head the high courts of Calcutta and Bombay. In my 44 years as a lawyer, I have not seen a judge comparable to Justice Desai who was extraordinarily competent, hardworking, judicious, fearless, independent, honest and just. So were other outstanding judges of the Gujarat HC — the late Chief Justice B J Divan and Justice S H Sheth, who were transferred during the Emergency to the Andhra Pradesh HC and won the hearts of all in that court. But then, these transfers were done by the executive before the celebrated judgment in Supreme Court Advocates-On-Record Associations & Anr. Vs Union of India delivered on October 6, 1993.

So, how is this power of transfer to be exercised, especially when its exercise is not justiciable either to the judge concerned or to a public interest litigant? In his leading judgment, speaking for the nine-judge bench referred to above, Justice J S Verma gave a fundamental justification as follows: “These questions have to be considered in the context of independence of the judiciary as the part of the basic structure of the Constitution, to secure the rule of law, essential for the preservation of democratic system”. He called upon all the constitutional functionaries, who are involved in the process of appointing superior judges, to “be fully alive to the serious implications of their constitutional obligations and be zealous in its discharge in order to ensure that no doubtful appointment can be made”.

Justice Verma emphasised that the primacy of the CJI and of the HCs was to ensure the best suitability and “to eliminate political influence”. He held that “the constitutional purpose to be served by these provisions is to select the best from amongst those available for the appointment as judges of the superior judiciary” and that only such persons should be considered, who “combine the attributes essential for making an able, independent and fearless judge” and having proper personal conduct, ethical behaviour, firmness.

On transfers of HC judges, Justice Verma said “every power vested in a public authority is to subserve a public purpose and must invariably be exercised to promote public interest”… and “this guideline is inherent in Article 222 of Constitution”. Article 222 deals with the transfer of a judge from one high court to another by the President after consultation with the CJI. Again, he holds, in the effecting transfers, “the personal factors relating to the judge concerned, and his response to the proposal, including his preference of places of transfer, should be taken into account by the Chief Justice of India before forming his final opinion.” But then he emphasised, “that such final opinion must be formed objectively, on the available material, in the public interest for better administration of justice”. The CJI, in forming his opinion, is expected to take into account the views of the chief justice of the high court from which the judge is to be transferred, any judge of the Supreme Court whose opinion may be of significance in that case, as well as the views of one other senior judge of the high court or any other person who views are considered relevant by the CJI. In my view, the CJI must always take the views of those senior members of the Bar who in his opinion can express views which may be considered relevant.

The above being declared as law by the Supreme Court, binds the Court itself and particularly the collegium, which exercises power under the Constitution. Clearly, the collegium is bound by the above law and I am sure it has taken the necessary care to follow it. If not done so, the collegium must show courage and reconsider its decision, particularly considering the sentiments of the entire Bar of the high courts of Telangana and Gujarat.

If indeed the judges transferred are fiercely independent as the Bar feels, their transfers will send a chilling message to all those young and competent members of the Bar who may wish to become judges. The desire to protect the independence of the judiciary was the bedrock of the Supreme Court’s subsequent decision in 2016 declaring the Constitution (99th Amendment) Act, including Article 124 A of the Constitution — National Judicial Appointments Commission — to be unconstitutional. Yet, time and again, decisions of the collegium have raised serious doubt about their intentions to protect the independence of the judiciary and to select the best from amongst those available, much less to act only to “subserve public purpose and to promote public interest”.

Let us hope CJI D Y Chandrachud and the learned judges in the collegium, who are much respected, will turn the tide and put the process of appointments and transfer on a just, fair and independent course.

The writer is a Senior Advocate before the Supreme Court of India and former president, Supreme Court Bar Association of India