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Friday, Oct 29, 2004

Opinion

Opinion - Leader Page Articles

The transfer of judges

By Rajeev Dhavan

Transfer of High Court judges without their consent undermines judicial independence. Errant judges must be dealt with by a judicial commission with due process.

INDIA'S HIGHER judiciary is possibly the most powerful national judiciary in the world. Internationally respected for its inventive creativity, it is beset with problems. Apart from the huge backlog of cases pending disposal, there is the increasing problem of corruption. India simply does not possess the effective means to deal with corrupt judges. The lower judiciary comes under the superintendence of the High Courts which discipline subordinate judges — not always fairly. But at least some kind of system is in place, along with the corrective of a writ petition to the disciplining High Court and an appeal to the Supreme Court.

But how is judicial indiscipline, unbecoming conduct and corruption in the higher judiciary, comprising the High Court and Supreme Court judges, to be dealt with? Supreme Court judges are subject only to peer pressure or impeachment. When Justice V. Ramaswamy's case was being processed for impeachment, a small committee of Supreme Court judges reported on November 6, 1990, that it was not necessary that Justice Ramaswamy desist from work. The impeachment failed. The statutory examining committee's finding against the judge was politically defeated by Parliament in 1992.

High Court judges can also be removed from office only by impeachment. However new internal methods and mechanisms have been evolved to deal with errant judges. This is a veiled procedure. In the Bombay Complaint case (1994), the Supreme Court cautioned the Bar and the public against airing allegations in public and to use informal processes of informing the Chief Justice of India. Irrespective of whether the charges were true, there have been cases in which High Court judges have resigned, including the Chief Justice of the Bombay High Court, A.M. Bhattacharjee, the additional judge of the Delhi High Court, Shamit Mukherjee, and the Rajasthan High Court judge, Arun Madan. In 2003, the Chief Justice of India appointed a panel of High Court judges to assess the credibility of charges against some High Court judges in Karnataka and Punjab. In 2004, a major crisis occurred in Punjab as a large number of judges abstained from work to protest certain actions taken by their Chief Justice. The crisis was defused by Chief Justice V.N. Khare and his colleagues in the Supreme Court. But when it was suggested that the Punjab judges be sent to the Northeast, the Bar of those regions asked incredulously why they should be asked to accept allegedly tainted judges.

But using the weapon of transferring judges from one High Court to another as a disciplinary measure is back in vogue. Contained in Article 222 of the Constitution of India, the power to transfer High Court judges has an awkward history. The States Reorganisation Committee (1955) felt that one-third of the judges of a High Court should be recruited from outside the State to arrest parochialism. This principle was accepted by the 14th Report of the Law Commission (1958) to support national integration but not as a punitive measure. But the proposal of transferring judges for national integration did not have general acceptance. In 1965, eight of the 15 High Courts were against this proposal. An important letter of Chief Justice Subba Rao of October 6, 1966, added the important caveat that judges should be brought from the outside at the time of initial recruitment. The theme of national integration was echoed by a study team for the Administrative Reforms Commission in 1967. Meanwhile, many transfers were effected from one High Court to another. Many distinguished Chief Justices of India had the benefit of serving in many High Courts. But the important element in all these pre-Emergency transfers was that both the appointment and transfer of High Court judges from another State were invariably made with the consent of the judges concerned.

During the Emergency (1975-77), the principle of transfer by consent was given the go-by. High Court judges critical of the Emergency or who ruled against arbitrary preventive detention were transferred as a punishment. Those were difficult days. Justice H.R. Khanna resigned because the Government superseded him in the appointment of the Chief Justice of India because of his dissenting judgment in the Preventive Detention case (1976). After the Emergency, judges were re-transferred or elevated to the Supreme Court. The principle of transfer by consent was momentarily restored.

But, the majority led by Justice V.R. Krishna Iyer in the Sheth case (1979) kept the idea of a compulsory transfer without consent legally alive — over the spirited dissent of Justice P.N. Bhagwati. Soon after the Congress returned to power on 18 March 1981, a policy of transferring one-third of High Court judges to some other State was re-promulgated in the name of national integration. This policy was approved in the First Judges case (1981) but once again over the strong dissent of Justice Bhagwati who approved of initial appointments to other High Courts (which naturally require consent), but rightly took the view that a transfer of a High Court judge against his wishes would compromise the independence of the judiciary. From 1981, the one-third policy (with or without consent) was followed unevenly — neither fulfilling the quota of one-third or any national purpose. A semblance of consent was obtained by asking the preferences of High Court judges about where they would like to be transferred. But, preferences were not always honoured with consent. By the 1990s, the formal policy of transferring one-third of the judges from each High Court was abandoned. But the policy to bring in a Chief Justice from outside the State was continued. Even so, the transfer of other judges who were not Chief Justices continued. In most cases, appointment of out-of-State Chief Justices proceeded without too much demur. But there were instances in which both the transfer of the Chief Justice and other judges were seen as punitive. Nothing was said. No reasons were given. But the transfer was perceived as a reprimand if not punishment.

The protest against the transfer-without-consent policy can be found in the Law Commission Report of 1958 and the Justice Satish Chandra Committee report of 1986. A Consultative Paper to the Constitution Commission of 2001 heaved a sigh of relief that the general policy of transferring judges had `mercifully' been abandoned. The Constitution Commission (2002) rightly recommended that a national commission be set up to examine the complaints against the High Court and Supreme Court judges. But one of the `punitive' actions which such a proposed commission could take is it to transfer a High Court judge to some other court for "deviant behaviour not amounting to misbehaviour."

In the last decade or so, transfer of judges for errant behaviour has become a way of disciplining High Court judges. No doubt under the Judges cases (1993, 1994 and 1998), transfers can be challenged — eventually before the Supreme Court. But this remedy is not regarded as a sufficient corrective.

On September 18, 2004 at a seminar on "Envisioning Justice in the 21st Century", Chief Justice R.C. Lahoti expressed his determination to deal with judicial corruption. Prime Minister Manmohan Singh felt that a "mechanism of accountability (should be) conceived and implemented by the judiciary." How is this going to be done? Since 1973, there have been proposals to create a National Judicial Commission for both appointments and disciplining of the higher judiciary. In 1990, The Constitution (67th) Amendment Bill for this purpose was tabled but it lapsed. Time and again, such proposals have been made — including by the Constitution Commission (2002) and through the lapsed Bill No. 41 of 2003. There are always some defects in the Bills; and there is an inevitable lack of consensus.

But are transfers without consent the answer? On October 20, 2004, many appointments and transfers of High Court Chief Justices were reported. It is predicted that other transfers will follow — especially of the Punjab judges who protested against their Chief Justice. Transfers are monitored by a collegium of Supreme Court judges. On transfer, no imputation is made or alleged. All transfers are for administrative convenience. But in the media and elsewhere, speculation continues over the reason for transfers. This is not good for either the judges or the High Court or the rule of law. As long as there is a transfer policy, lobbying in respect of transfers will follow. As between High Courts, the policy of transfer neither blesses them that give or them that takes.

We are left with a huge lacuna in our system. Justice Bhagwati was right. While peer pressure will continue, the transfer of High Court judges without their consent undermines judicial independence. To protect the rule of law, errant judges must be dealt with by a judicial commission with due process.

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