Supreme Court accepts the Government suggestion on outside Chief Justices. Self-Inflicted wounds seldom heal. I am reminded of this whenever I think of the transfer policy of High Court Judges being followed by the Supreme Court. No doubt the power of transfer of Judges from one High Court to another is to be found in the Constitution. But when in 1963, some amendments were to be made, the then Law Minister in order to remove apprehensions about the misuse of power, assured the Parliament that the transfer of a High Court judge would only be done with the Judge’s prior consent.
But in 1975, the High Court Judges were the targets in a series of non-consensual transfers because they were said to be too independent. The Supreme Court, one had hoped, recognising the danger to the independence of the judiciary, would strike down this provision — but rather it self-inflicted a wound by continuing to uphold this power.
I fail to see any logic in the present policy of transfers. Normally transfers may be explained by the Supreme Court by relying on what is ironically called the “uncle/nephew phenomenon”, namely to transfer those Judges whose sons or brothers are practising in the same High Court – though to me this unnecessarily accepts an adverse assumption without any solid proof. But to transfer a Judge at the initial stage is the most unfair. There is double jeopardy. When Judges are appointed in one court and then transferred to another, they are denied the right to practice in the parent court. The more damaging aspect of the transfer of Judges is the practice of appointing outside Chief Justices and Judges notwithstanding the fact that at the Chief Justices’ Conference held in 2002, it was resolved that the policy of having outside Chief Justices of High Courts be discontinued. But the Government was apparently not happy with it because in such a case, it would have no hand in the appointment, because the senior most Judge of a High Court would automatically have to be appointed the Chief Justice. Later on however, the Supreme Court collegium yielded to the Government suggestion of outside Chief Justices and the damage was done.
There are no precedents in India or in other countries like the USA and the UK for this practice to prevail. In fact, in the USA, in many states, the Supreme Court Justices, whether elected or appointed, are not posted outside the state. No one has found fault with this practice in the USA or the UK. Why this gratuitous insult to the Indian judiciary?
I have never understood the logic of transferring the senior most Judge whose turn has come to head the Court in which he has worked for almost 10 to 15 years, and with the functioning of which, and also the lower judiciary, he is most familiar.
To transfer him out of the state for a period of one or two years to a new court to which he is a total stranger, most likely not even knowing the names of his colleagues, is a strange concept of advancing the administration of justice. He may willy-nilly have to rely only on the opinion of a few select colleagues and officials which unfortunately may spell further disharmony in the High Court. Is there any special reason why the judiciary wants to devalue experience and, thus, score a self-goal and reduce its own effectiveness?
Let us not indulge in hypocrisy of Judges being tigers and fiercely independent — yes they should be, but practical life is different.
We know to our shame how apparently Supreme Court Judges caved in during the Emergency (1975), and how the threat of transfer kept many quiet. Do not forget that Judges come from the same background as the rest of us mortals.
That transfer policy continues to defy logic has been brought to public notice very recently and rudely when I read in a newspaper about the appointment of nine judges in the Punjab and Haryana High Court. All of them, we are told, were asked to give their consent to be transferred any time at the discretion of the Supreme Court, though they were given the useless lollypop of inviting their three preferences of the states to which their transfers could be made. I understand none of them has any relation practising in the Punjab and Haryana High Court. Three have already been ordered to be transferred. How a choice has been made and by what norms, is not immediately known. So arbitrary, and one may even say unsympathetic is the decision that amongst these three, there is a lady judge, who has no parents and, being unmarried, no immediate family that she can take with her to the new strange place. I am quite sure that if the Executive had transferred any officer in such circumstances, the Supreme Court would have pontifically reprimanded the Executive for justifying its arbitrary and discretionary anti-women attitude – sarcastically this action of the collegium has given a pleasurable justifiable occasion to retort loudly: “Physician heal thyself first”.
Let me make it clear that I have never seen or met any of these nine appointees, nor have I known the parents or relations of any of them. My distress is because of the deep attachment I have to the Punjab and Haryana High Court, where I spent my best years at the Bar and where friends were gracious enough to elect me the President of the Punjab and Haryana High Court Bar Association unopposed in 1967-68. So any decision touching the High Court by the mysterious working of the collegium naturally disturbs me.
I also know closely the trauma of transfers from my experience during the 1975 Emergency. But then we were political animals and could bear the trauma, namely, family disruption and isolation, tolerably well. But there is no justification for putting the politically neutral judges, especially a single lady judge, to the trauma of transfers and tragically that too at the hands of the family head — the collegium of the Supreme Court.
I know I am sounding harsh, but let me in my defence call to aid the observations of Justice Holmes of the US Supreme Court who said: “I trust that no one will understand me to be speaking with disrespect of the law, because I criticize it so freely…but one may criticize even what one reveres… and I should show less than devotion, if I did not do what in me lies to improve it.”