View: Why HC judges can't be transferred according to whim & fancy

By Rajeev Dhavan

Should High Court judges be transferred from one state to another like civil servants? Are they part of an All India cadre of judges? No. The Jayant Patel controversy raises these and many other questions.
The constitutional provision is contained in Article 222: ‘The President, after consultation with the Chief Justice of India, may transfer a judge from one High Court to any other High Court.’

Justice Jayant Patel from Gujarat was acting Chief Justice of Gujarat from August 13, 2016 after he had served since 2004. Other things remaining neutral, he should have become Gujarat Chief Justice. He was transferred to Karnataka on February 13, 2016. In Karnataka, Patel was second most senior and would have become Chief Justice after the current one retires this October 9.

But no, Patel was transferred to the Allahabad High Court to retire where his ranking would be No 3, unless he was arbitrarily transferred again. His chances of being Chief Justice or being elevated to the Supreme Court are practically destroyed.

Could GoI have been harbouring angst against Patel who had decided on the Ishrat Jahan encounter killing case in a way that did not please the ruling party?

Patel was not alone. Another judge of Delhi High Court, Rajiv Shakdher, was transferred to Madras. Shakdher had given relief to Priya Pillai of Greenpeace, who was offloaded from a plane in 2015 to supposedly stop her from testifying in London. Justice Abhay Thipsay of Bombay High Court was also transferred to Allahabad. Was it because he had sentenced nine of the 21 accused in the Best Bakery case to life?

There are other examples. After the Supreme Court judgments on appointments and transfer of judges of 1982, 1983, 1998 and 2015, the government was disempowered from making decisive decisions in this regard. The power rested with the collegiums of Supreme Court judges. One can understand the government’s antipathy to these judges. But after fighting for its own supremacy, has the collegium buckled under GoI pressure? Or is this just a huge coincidence?

If the collegiums cannot stand up to the government, the rule of law is at peril. The transfer provisions in the Constitution were meant for transfer by consent where exigencies required. In the Union of India v Sankal Chand Sheth case (1977), the actual transfer was withdrawn. But Justice YV Chandrachud did not accept the ‘consent’ principle. Justice PN Bhagwati, however, stated that to transfer without consent was inimical to the independence of the judiciary.

In the SP Gupta v Union of India case (1982), the Bhagwati view was contained in a dissent. This has, unfortunately, been forgotten. This was because of a Congress policy that declared such ‘transfers’ were in the interest of national integration. This national integration ‘excuse’ was hogwash. It simply allowed the government – along with the judges -- to have a say in picking and choosing those individuals they wanted to reward and punish. Some judges – such as Hameedullah Beg and RS Pathak -- were transferred to accelerate their chances of becoming Chief Justices of India, which they did become. And let us not forget the Emergency.

Justice Chinappa Reddy was sent to Punjab. After the Emergency, he was elevated to the Supreme Court. Justice Shivakant Shukla of Allahabad, who struck down detentions during the Emergency, nearly made it to the Supreme Court but a penultimate report prevented his appointment. The story goes on. But the transfer policy has also been used punitively to transfer corrupt or suspect judges.

In the case of Justice PD Dinakaran, his charges of corruption may have been an obvious impediment to his becoming a Supreme Court judge, an elevation that was announced and then withdrawn by the court. But after he refused to go on leave he was sent to Sikkim. On earlier occasions, too, the Sikkim and North East Bar had refused to accept tainted judges as ‘punishment posting’.

I remember Justice AN Ray wistfully pointing at the Kanchenjunga and telling me: “Which court has such a view.”

The government is to blame for this conundrum, but so do the collegium judges. The only solution to this mess is to make the system transparent.

Jayant Patel has resigned. He was punished for his independence. So what is the solution now? It will be some time before the ‘collegium’ will be sorted out and immunised from government control. But one practical and principled solution would be: Deal with corrupt judges by denying them work. Persuade them to resign. Let the polity impeach them.

The ‘When-you-like’ transfer policy is absurd. Follow Justice Bhagwati’s counsel. Let there be no transfer without consent.

The writer is a senior advocate