There are 1,079 judges in 25 HCs in the country. Between Jan 10, 2019, & Feb 12, 2020, the collegium headed by the Chief Justice of India recommended transfers of 24 judges & nine chief justices from one High Court to another. This means, only three in 100 judges faced transfer in a year.
Most transfers went unnoticed by advocate associations. But in a few instances, advocate associations protested & even took the extreme step of boycotting court work. It is difficult to fathom why lawyers protest against the transfer of some judges but keep quiet for others.
Before the collegium came into force in the 1990s, transfer of judges was a mundane affair. It came under the spotlight during the dark days of Emergency, when 16 judges were transferred from one High Court to another. The executive had wreaked vengeance against them for entertaining habeas corpus petitions filed on behalf of those detained under the Maintenance of Internal Security Act (MISA).
One of them, Justice Sankalchand Himatlal Sheth, was transferred from Gujarat High Court to Andhra High Court on May 27, 1976. He challenged the transfer saying he hadn't consented to it & that it breached law minister A K Sen’s promise to Lok Sabha in 1963 that “so far as High Court judges are concerned, they should not be transferred excepting by consent”.
The Gujarat High Court struck down the transfer. The Union govt challenged it in the SC. Though the change of govt in 1977 saw Justice Sheth being transferred back to Gujarat High Court, a five judge Supreme Court bench went on to give an authoritative pronouncement on the issue of transfer.
In the Sheth case [1977(4) SCC 193], the Supreme Court said sometimes transfer of a judge becomes a compulsion because of close nexus he develops with local interests. It had said, “The factitious local atmosphere sometimes demands the drafting of a judge or a chief justice from another High Court & on rarest of rare occasions, which can be counted on the fingers of a hand, it becomes necessary to withdraw a judge from a circle of favourites & non-favourites.
“Though transfers in such cases are pre-eminently in public interest, it will be impossible to achieve that purpose if a judge cannot be transferred without his consent. His personal interest may lie in continuing in a court where his private interest will be served best, whereas, public interest may require that his moorings ought to be served to act as a reminder that ‘the place of justice is a hallowed place’. It is difficult to impose limitations on constitutional provisions as contained in Article 222 by importing the concept of consent which is conspicuously absent therefrom.”
Then came the ‘first judges case’ [S P Gupta; 1981 Supp (1) SCC 87], in which a sevenjudge bench reiterated the ruling in Sheth case & said there was no need of prior consent of a judge before his transfer. It was followed by the ‘second judges case’ in Oct 1993 & the ‘third judges case’ in Oct 1998. The second case laid the foundation for the ‘collegium system’, which allowed judges to select judges. It was expanded by the third case. In both cases, the Supreme Court had said plurality in decision-making by involving many other judges, while according primacy to the CJI, would rule out arbitrariness in selection of persons for appointment & transfer as high court judges.
It said a judge’s transfer could not be challenged before a court on any ground, including bias, except for the reason that there was improper consultation by the CJI before recommending to the govt to transfer a judge. “Any transfer in accordance with the recommendation of the CJI can't be treated as punitive or an erosion in the independence of judiciary,” it said. However, the Supreme Court did ask the CJI to take into account personal difficulties & preference for transfer of the judge concerned.
However, 27 years ago, it did notice the nexus between certain judges & bar associations & the use of public interest litigation to challenge certain transfers & appointments. It had highlighted the “growing tendency of needless intrusion by strangers & busybodies in the functioning of the judiciary under the garb of public interest litigation”.
In S P Gupta case, the Supreme Court had said, “It has, however, to be made clear that it can't be said that lawyers only, because they have a right to practice in a court, have ‘locus standi’ to file petitions in respect of every matter concerning judges, courts& administration of justice.”
And probably not many lawyers know that under Article 222, a judge transferred out of his parent HC to another state gets compensatory allowance.
Last year, Telangana High Court advocates association protested the transfer of Justice P V Sanjay Kumar to Punjab & Haryana High Court. It was followed by protests against Madras High Court CJ V K Tahilramani’s transfer to Meghalaya High Court. Lawyers even protested shifting of Justice Zaka Haq from Nagpur bench to Aurangabad bench of Bombay High Court. And now, Delhi High Court advocates abstained from work against the transfer of Justice S Muralidhar to Punjab & Haryana High Court.
Most often, the ground for protest against transfer is that the judge is “upright & honest”. Does that mean other judges, whose transfers do not evoke protest, aren't upright or honest? Is there a constitutional provision prohibiting transfer of ‘upright & honest’ judges? Can bar leaders spell out the real reason for protests against transfer of some judges?
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