Updated: Dec 10, 2019
PRESENT AGITATION : The transfer of Chief Justice V.K. Tahilramani from the Madras High Court to Meghalaya High Court, which led to her resignation in protest, points to the rot within the collegium system.
PROCEDURE OF TRANSFER UNDER INDIAN CONSTITUTION :
The Supreme Court derives its power to select, appoint and transfer judges from its verdicts in Three Judges Cases. After a spate of “punishment transfers” of upright judges by the Central government during the Emergency in 1975, the judiciary arrogated to itself the power in order to preserve judicial independence. Thus, the collegium system consisting of the Chief Justice of India and four senior-most judges of the Supreme Court was put in place.
· Article 222 of the Constitution makes provision for the transfer of a judge (including the Chief Justice) from one High Court to another. The initiation of the proposal for the transfer of a judge should be made by the Chief Justice of India (CJI) whose opinion in this regard is determinative.
· Consent of a judge for his first or subsequent transfer, according to the Memorandum of Procedure (MoP), would not be required. All transfers, the memorandum makes it clear, are to be made in the public interest, that is, for promoting better administration of justice throughout the country.
However, the apex court’s power to transfer is not unfettered and absolute and can only be carried out in public interest for better administration of justice.
WHEN SC CAN TRANSFER JUDGES ?
The Supreme Court can order a judge’s transfer to improve the functioning of either of the High Courts or if there are close relatives of the judge practising in the same Court. The apex court can also do so if the judge has litigation or property interest in the State or has become controversial and so her continuance in the same High Court is not conducive.
SAFEGUARD AGAINST ARBITRARY TRANSFER :
The only safeguard it envisages is that the views on the proposed transfer of a judge or a Chief Justice of a High Court should be expressed in writing and should be considered by the CJI and the four senior-most judges of the Supreme Court, who constitute the collegium.
“The personal factors relating to the concerned judge, including the Chief Justice, and his (or her) response to the proposal, including his preference of places, should invariably be taken into account by the CJI and the first four puisne judges of the Supreme Court before arriving at a conclusion on the proposal,” the memorandum states.
In the case of the transfer of the Chief Justice of a High Court, there is one additional safeguard to be followed by the CJI in the formation of his opinion. The CJI should take into account the views of one or more Supreme Court judges who are in a position to offer his/their views, which would assist in the process of deciding whether or not a proposed transfer should take place, the memorandum adds.
CASE IN POINT :
· The resolutions, uploaded on the Supreme Court’s website, are silent on whether the CJI took into account the views of one or more Supreme Court judges who would have been in a position to offer their views to assist in the process of deciding whether or not the proposed transfers should take place.
· Similar lack of transparency was evident when the collegium claimed that it had “carefully gone through” the representation of Justice Tahilramani, for “reasons stated therein” to reconsider the proposal to transfer her to the Meghalaya High Court, along with “all relevant factors”. “On reconsideration, the collegium is of the considered view that it is not possible to accede to her request,” it concluded on September 3, and reiterated its recommendation to transfer Justice Tahilramani to the Meghalaya High Court.
JUSTICE LOKUR OPINION ON WORKING OF COLLEGIUM :
· Justice Lokur in an article stated “There are no fixed criteria for selection of judges to the Supreme Court, and the requirements keep changing. There are considerations of seniority, adequate representation of High Courts, gender, religion, caste and of course merit sometimes finds a place as well.”
· Justice P.V. Sanjay Kumar opinion on the transfer of the judges - “A senior and eminently competent judge from one High Court has been transferred out supposedly for the better administration of justice, giving an impression that his presence in the High Court was not conducive to the administration of justice. Does this not make the transfer punitive?”
OTHER SIDE OF THE COIN : It is a fallacious argument when one considers that there are no known complaints about her performance or any public controversy around her judicial or personal conduct. It is possible that the transfer is based on an internal performance assessment, or complaints not available in the public domain. However, in the absence of any explanation, the bar cannot be blamed if they see the transfer as punitive. If it is performance-related, a question arises as to whether all judges are being assessed on the same criteria.
However, the Tahilramani controversy shows that the systemic faults of the collegium system — opaqueness and the scope for personal opinions colouring decision-making — remain unaddressed.