Transfer of judges

Reading time: 6-8 minutes.

“When justice has to triumph, it will triumph…Be with the truth—Justice will be done.” These were the words of Justice S. Muralidhar, the third most senior judge of the Delhi High Court, as he delivered his farewell speech to a large gathering of his colleagues from the Bench and the Bar.

On the night of February 26, when a part of Delhi was still burning, the Central Government notified the transfer of Justice Muralidhar to the Punjab & Haryana High Court. The next morning saw the social media flooded with posts questioning the intention behind the transfer. Many media outlets questioned it too and Justice Muralidhar became the judge who was transferred for reprimanding the police over their inaction. This was the birth of controversy and the Centre was in the middle of it.

The controversy

In his own words, February 26 was the longest day of Justice Muralidhar’s career. It marked the fourth day of the Delhi riots. At 12.30 am Justice Muralidhar sat down to deal with a Public Interest Litigation (PIL) filed by Rahul Roy that sought safe passage of ambulances carrying the riot victims. Later, on the same day, he along with Justice Talwant Singh heard another PIL from the Chief Justice’s board.

It was while hearing this PIL that Justice Muralidhar stated that the city won’t see a repeat of the 1984 anti-Sikh riots, at least not under the watch of the court. He reprimanded the police over their inaction and directed them to register FIRs against leaders including Anurag Thakur, Parvesh Verma, Abhay Verma and Kapil Sharma for alleged hate speech that led to violence in Northeast Delhi. He also directed for the constitution of a Special Investigation Team (SIT), deployment of army and compensation to the injured and the dead among other things.

His stance filled the people with hope which was soon taken away when close to midnight the Central Government issued the notification of the transfer of Justice Muralidhar to the Punjab & Haryana High Court. It was not taken to be a routine transfer because of its hurried manner and was instead being called a punitive action for speaking against the leaders of BJP, who is in power at the Centre.

Ravi Shankar Prasad, the Law Minister of India defended the midnight transfer order and stated that it was a decision that had already taken place two weeks back. This controversial notification came in furtherance of the recommendation made by the Supreme Court Collegium headed by the Chief Justice of India, S A Bobde which on February 12 had recommended the transfer of Justice Muralidhar along with two other judges. The collegium did not specify any reason for the transfers, as has been the practice.

This transfer recommendation was condemned by the Delhi High Court Bar Association, which not only abstained from work for a day as a mark of their protest but also demanded the collegium to revisit its decision and recall it. Justice Muralidhar—who is known for deciding cases such as the Sajjan Kumar case, Naz Foundation case, and Hashimpura massacre case, clarified that his opinion was sought by the SC collegium concerning his transfer and that he had no issues with it. He has since then taken charge at the Punjab & Haryana High Court and is the second most senior judge there.

Procedure for transfer of judges in India

The procedure for transfer of judges from one High Court to another in India is governed by the Supreme Court collegium headed by the Chief Justice of India. Apart from the CJI, the collegium consists of the Chief Justice of the High Court from which the judge is to be transferred, the Chief Justice of the High Court to which he would be transferred, and one or more senior-most Supreme Court Judges.

The collegium headed by the CJI makes the recommendation for the transfer which is referred to the Government of India along with the views of all the judges involved in making the recommendation. This recommendation is then submitted by the Union Law Minister to the Prime Minister who then advises the President on the transfer of the concerned High Court Judge. Once the transfer is approved by the President, the transfer is announced and then notified in the Gazette.

Legal/Constitutional provisions

The provisions of Article 222 of the Constitution of India govern the procedure of transfer of a judge from one High Court to another.

This article has an absence of guidelines concerning the transfer of judges and has been a part of many judicial interpretations over the years. In Union of India v Sankalchand H. Sheth [(1976) 17 Guj LR107], the transfer of Justice Sheth was challenged because such transfer had taken place without the consent of the Judge and without consulting the CJI. In this case, it was held that the transfer of judges cannot be made without consulting the CJI and must be made only in public interest..

The decision of the Sankalchand H. Sheth case was followed in S. P. Gupta v Union of India [(1982) 2 SCR 365] which is also known as “the First Judges case”. The decision, in this case, gave the primacy to the Executive and not the CJI in matters of appointments and transfers.

The Supreme Court Advocates-On-Record Association v Union of India [AIR 1994 SC 268], commonly known as “the Second Judges Case”, overruled the decision of the First Judges Case. It gave back the primacy to the Judiciary in matters of appointments and transfers. The Hon’ble Supreme Court also established that the CJI will form his opinion by taking into account the views of two senior-most judges of the Supreme Court. It was also held that the opinion of the CJI was also determinative in mattes of transfers.

It was in 1998 that the then President K. R. Narayanan sought the opinion of the Supreme Court concerning judicial appointments and transfers. The Supreme Court thus laid down that the sole recommendation of Chief Justice of India does not constitute “consultation” to fall within the meaning of Article 222. The recommendation for appointments and transfers must be made by the CJI in consultation with four senior-most judges of the Supreme Court. 

Criticism of the system

The transfer of Justice Muralidhar is not a sole case of a transfer that was met with controversy. Similar cases have erupted in the past as well and have forced some questions to be raised on the Supreme Court Collegium.

The transfer of a judge from one High Court to another can be made only in the name of public interest and for better administration of justice. However, on more than one occasion, the transfer orders of High Court Judges have left the people wondering as to what manner of public interest is being fulfilled by such transfers. There are rarely any explanations or reasons given behind the recommendations; the people are merely expected to have faith in the working of the said collegium, even though it has promoted opaqueness rather than transparency.

The 1970s saw the supersession of many senior Supreme Court judges for appointment for the office of Chief Justice of India. Similar was the issue in transfers of High Court Judges. There was a lot of arbitrariness and bias that reeked out of these decisions. It was only in the later years that the Hon’ble Supreme Court through its decisions put a check on executive arbitrariness by giving a primacy to the judiciary in matters relating to appointments and transfers of judges. It also stated that “the plurality of judges in the formation of the opinion of the Chief Justice of India” will act as an in-built check on any further bias or arbitrariness.

The Second Judges case and the Third Judges case laid down guidelines and norms that were supposed to stop the erosion of independence of judiciary. And yet, there are instances of transfers of Justice Rajiv Shakdher of Delhi High Court, Justice Jayant Patel of Gujarat High Court, and more recently the transfer of Madras High Court Chief Justice V K Tahilramani which force out the question — has the judiciary become complacent about its own independence?

Scope of improvement

History is proof that the power of transfer of High Court Judges has been abused. Despite the Supreme Court’s decisions on this subject which clearly state that a transfer cannot be a punitive measure, the feeling of a judge’s transfer being an act of punishment persists. Time and again the transfers of High Court Judges from Justice Jayant Patel to Justice Muralidhar are met with controversy and the lack of explanation on the part of the collegium fuels it further. Merely making the recommendations of transfer public is not an act towards transparency.

Judicial reforms are the need of the hour to maintain the faith of a common citizen in the Courts of law. The Supreme Court has in many decisions established the importance of a “reasoned decision”. It has stated that recording of reasons is “the heartbeat of every conclusion” and “the lifeblood of judicial decision making”. It is, thus, time for the Apex Court to revisit its reasoning. After all, when the law of the land is the same for everyone, then, why should the case of transfer of judges be not treated with the same principles of a reasoned decision?

Conclusion

Justice Muralidhar was transferred amid protests. His transfer was already marred with controversy as the SC collegium did not state any reason for making such a recommendation of the transfer. The non-stating of reasons has been a practice of the collegium and has on more than one occasion raised questions. The controversy was further fueled when the transfer was notified at around midnight. A routine transfer was suddenly shrouded with clouds of doubts and suspicions.

Even though the recommendation was made two weeks before, it was not welcomed by the legal fraternity. The government’s hurried and abrupt notification sowed the seeds of mistrust and a disappearing faith in the minds of the common people. A lack of reasoning and explanation led way to more conjectures.

The Judiciary needs to remain independent to ensure the delivery of justice. And in doing so, it is also the responsibility of the Judiciary to ensure that the faith of the people is not lost in the Courts of law. Transfer of Judges must be without any speck of bias or arbitrariness. Stating reasons behind the transfers can go a long way in ensuring the transparency of the process

Author: Shalu Bhati from Campus Law Centre, Faculty of Law, University of Delhi.

Editor: Ismat Hena from Faculty of Law, Jamia Millia Islamia.