What is the common man, the consumer of justice, to make out of the transfer of Chief Justice Sanjib Banerjee? From being at the helm at the Madras High Court, India’s fourth-largest court with a sanctioned strength of 75 judges, he is being sent to the Meghalaya High Court with a sanctioned strength of only four. Does this not appear to be banishment? Of course, all high courts are equal and high court judges across the country enjoy the same powers and privileges. But can Justice Banerjee’s transfer really be unconnected to some of what he said during court proceedings over the past several months, and what those matters pertained to? What could be the reason that a statement dated September 16 was made public almost two months later? In the past, Justices Rajiv Shakdher, Suresh Kait, S Muralidhar and Akil Kureshi, to name a few, were transferred, and accepted their new posting. But Justices Jayant Patel and V K Tahilramani, upon being transferred, put in their papers owing to what some termed as “hardship postings”.
Article 222 of the Constitution deals with the transfer of judges and states that the President may, after consultation with the Chief Justice of India (CJI), transfer a judge from one high court to another. This Article has been subject to extensive judicial review and interpretation and recalling the historical context may be helpful to understand its present-day usage and contours.
The 1970s witnessed the supersession of multiple judges in the appointment of the CJI and also the transfer of several High Court Judges. Post-Emergency, a five-judge bench of the Supreme Court interpreted Article 222 in the Sankalchand H Sheth case. While concurring with the majority, Justice P N Bhagwati held that the transfer of a judge from one court to another inflicts many injuries on the individual. He noted that the consent of the judge proposed to be transferred was part of the scheme and language of Article 222. He also held that if the power of transfer is vested solely with the executive, it undermines judicial independence and eats into the basic features of the Constitution.
Subsequently, the Supreme Court decided three cases popularly known as the “First, Second and Third Judges’ Cases”, which interpreted Article 222 and its working. Cumulatively, the First and Second Judges’ cases resulted in the formation of the Collegium System by interpreting “consultation” with the CJI to really mean “concurrence”. Such concurrence is of the Supreme Court as an institution and is arrived at by the CJI upon discussion with the two senior-most judges. The Third Judges’ case expanded the collegium to include the five senior-most judges, including the CJI.
In 1994, between the Second and Third Judges’ cases, the K Ashok Reddy case was filed in the Supreme Court dealing specifically with the question of transfer of judges of high courts. The contention raised therein was that such transfers were likely to be influenced by “extraneous considerations leading to arbitrariness resulting in erosion of the independence of the judiciary”.
The three judges in the K Ashok Reddy case, who were all also a part of the nine-judge bench in the Second Judges’ case, were satisfied that all the contentions raised had been adequately covered by the Second Judges’ Case and held that the absence of norms and guidelines in Article 222 seemed to be deliberate, as the power is vested in high constitutional functionaries, “and it was expected of them to develop requisite norms by convention in actual working”. This case also held that the power of transfer can be exercised only in “public interest”, for promoting “better administration of justice throughout the country”.
Hence, relying on the decision in the Second Judges’ case, the bench in the K Ashok Reddy case held that the “primacy of the judiciary in the matter of appointments and its determinative nature in transfers introduces the judicial element in the process, and is itself a sufficient justification for the absence of the need for further judicial review of those decisions, which is ordinarily needed as a check against possible executive excess or arbitrariness”. Seeking inputs from a plurality of judges in the formation of the opinion of the CJI is itself an in-built check against the likelihood of arbitrariness or bias.
Does all the above hold true even today? Given how our constitutional jurisprudence has evolved over the past 26 years, is it not time to re-examine some of what the three-judge bench held in K Ashok Reddy? And yet, could it not be said that the view taken by Justice Bhagwati 44 years ago in the Sankalchand Sheth case as regards transfers was perhaps the correct one with greater applicability in today’s time? If transfers are based on “public interest” then does the public not have a right to know such reasons? Shouldn’t the material that is considered before or when the transfer of a judge is being deliberated be shared with the concerned judge and all stakeholders? One can understand that sometimes this material may embarrass the judge. But a balance surely can be struck.
Judges speak primarily through their decisions. When reasons for transfer are not known, it leads to speculation that only “inconvenient” judges get transferred. This could be seen as degrading the work a judge is doing. How does a judge counter such doubts? In such circumstances, are judges’ transfers really not punitive?
The objective here is not to question the collective wisdom of the Collegium. But when the judiciary misses no opportunity to uphold the basic structure doctrine and preserve at all cost its independence, there is a need for transparency in judicial functioning to dispel all notions of favouritism, bias or governmental interference. Is this not also in “public interest” and for the larger good of the judicial institution?
This column first appeared in the print edition on November 17, 2021 under the title ‘Transfer and transparency’. The writer is a senior advocate based in New Delhi