Parth Kantak and Priyanshi Kothari
INTRODUCTION
The recent controversy around the transfer of Justice Nikhil S. Kariel and Justice Abhishek Reddy from Gujarat and Telangana High Courts (‘HC’) respectively to the Patna HC has resurfaced the contested issue of the transfers of HC judges. This issue can be traced to Indira Gandhi’s tenure in which a number of such transfers were made to suit the incumbent government’s reign leading to executive interference in judicial transfers.[1]
Ever since then, the issue of transfers of HC judges has been an important topic of discourse. In the 1990s, the Supreme Court (‘SC’) extensively ruled upon this issue in Re Special Reference 1 of 1998 (‘Third Judges’ Case’) to frame a procedure for judicial transfer that continues to be followed till date. However, the controversy around transfers continues unabated due to the opacity with which they are carried out.
While many scholars have argued the need of transparency and accountability to fight the opacity of transfers, none of them have examined whether this is truly valid and viable at the same time.[2]
Therefore, this paper examines the validity and viability of having transparency in the process of transfers through the disclosure of reasons behind the transfers (validity implies whether it is theoretically and in principle feasible and viability implies whether it is pragmatically feasible). It also indicates how although such an expectation is valid, it is nearly impossible to fructify due to practical constraints posed by the system making it unviable.
In this two-part blog, the author will cover the first part in two sections. The first section delineates the evolution of jurisprudence on the procedure of transfer. The second section delves into the analysis of the problem and reasons behind the controversies surrounding transfers and weighing arguments that state the pros and cons of the disclosure of reasons.
The second part will explore the validity and viability of the two mechanisms that can instill transparency- suo moto disclosure of reasons by the collegium and obtaining the disclosure of reasons through the Right to Information Act, 2005 (“RTIA”). It explains how both of these mechanisms are unviable, in turn concluding that the expectation of transparency would not be able to translate into reality.
THE IMPORTANCE OF TRANSFERS OF HC JUDGES AND THE EVOLUTION OF THE PROCEDURE
The importance of the transfer of judges was first discussed in the Constitutional Assembly Debates (‘CAD’) by Dr. Ambedkar who favoured the transfer of judges because it would import talent which might not be locally available. Moreover, importing a new CJ to the HC would prevent this CJ from being affected by local politics and jealousy. Hence, it can be inferred that judicial transfers were conceived as an important intervention by the government to maintain stability and distribute talent across all the High Courts.
Moreover, Arghya Sengupta in his book ‘Independence and Accountability of the Indian Higher Judiciary’ explicated the most common reasons for HC judges’ transfer. The reasons he identifies are :
1) transfer subject matter specialists to specific HCs,
2) maintain amicable relations between bar and bench,
3) preventing the occurrence of favouritism based on personal reasons, and
4) personal reasons of the judge
In Supreme Court Advocates-on Record Association v. Union of India (‘Second Judges’ Case’) the SC first framed the procedure for the transfer of the HC judges. The Third Judges’ case tweaked the procedure of the transfer to expand the composition of the collegium from a 3-memberbody to a 5-member body. This procedure as published by the Department of Justiceprovides forthe Chief Justice of India (‘CJI’) to initiate the proposal for the transfer of a judge.
The reason for the transfer of the judges should be backed with public interest. While in general terminology the meaning of public interest maybe vague, the notification interprets public interest to mean the promotion of better administration of justice across the country.
The current procedure followed for the transfer of HC judges is that the CJI is expected to get the views of the CJ of the HC from where the judge is being transferred and the CJ of the HC to which he is to be transferred. Moreover, the judge is expected to take the views of one or more SC judges who are in a position to aid the process of taking a call on the transfer.
These views should be provided in writing to the CJI and the four senior-most puisne judges of the SC. The collegium needs to consider these views in making their decisions along with keeping in consideration any personal factors, response to the proposal, and preference of place of the judge being transferred before deciding on the proposal which is then referred to the Government of India. Unless this procedure is followed, the proposal is not considered to be decisive and does not bind the government.
TAKING STOCK OF THE CAUSE OF CONTROVERSIES: PROS AND CONS OF DISCLOSURE
In recent times, there have been a couple of transfers that have garnered public attention with the bar associations taking up the issue with extreme seriousness in two cases. The two cases are that of Justice Nikhil S. Kariel and Justice Abhishek Reddy.
In the case of Justice Reddy, the bar association found the transfer to be ‘uncalled for’ since they claimed that he was one of the most upright judges in the Telangana HC. This instance can be correlated to the cases of Justice Jayant Patel of the Karnataka High Court and Justice Rajiv Shakdher of the Delhi HC that happened a few years back.
The motivation for the transfer of Justice Patel is thought to be linked to his order of directing the Central Bureau of Investigation which eventually led to a huge number of senior Gujarat Police Officers being arrested when the current Prime Minister was the Chief Minister of Gujarat, showing him in bad light.
The motivation behind Justice Shakdher’s transfer is thought to be linked to his decision of setting aside the Centre’s lookout notice against Priya Pillai, whose speech at an event led to bad publicity for the Centre on forest rights in Madhya Pradesh. Such instances raise serious doubts regarding strong extraneous motivations behind the transfer of the judges.
While it can be argued that the procedure is managed by the judiciary, the opacity in the procedure creates doubt of executive influence on certain decisions. This doubt gains credibility due to a number of cases in which the judges were transferred because of an underlying cause that could be a result of executive influence like not giving decisions in favour of the ruling faction and without any other possible reason, as has been illustrated above. The SC in various cases including Sankal chand Himmatlal Sheth, Second and the Third Judges cases propounded that the transfers can only be for the public interest qualifying the public to be the primary stakeholder. This makes it imperative that the institution of judiciary is transparent with the public. It is in the light of this problem that scholars have argued for the mandatory disclosure for the reasons of judicial transfer since it is plainly in favour of public interest.
The following are arguments in favour of disclosure based on varied considerations (also applicable to the ‘public interest’ test given in Part 2). Disclosure of reasons adds an element of accountability to the decision-making process. The public has an interest in the functioning of the judiciary because of the impact that the decision would have on them. In order to attain public approval, the organs of the state would need to be transparent, such that the public can repose their trust in the system. This becomes relevant because the judiciary comprises non-elected members.
Hence, unlike a government which is re-elected after every five years and is held accountable, this could be one of the ways to bring accountability to this institution. It would aid judicial independence too since gaining public trust would allow the public to make peace with the idea of a certain degree of independence being accorded to the judiciary due to the fair amount of accountability exhibited by the judiciary.
Moreover, the prolonged non-disclosure of reasons would add to the existing doubts being raised regarding extraneous reasons. These arguments find counters only on two bases: erosion of judicial independence and right to privacy. These are addressed sufficiently in Part 2 during the application of the public interest test. Therefore, on this basis, it can be considered that the expectation of disclosure is valid and pertinent in nature.
Part 2, as mentioned above, deals with the two mechanisms examining their validity and viability giving a comprehensive account of whether an expectation of transparency is truly possible.
[1] MamtaKachwaha, Judiciary in India: Determinants of Its Independence and Impartiality (Centre for the Independence of Judges and Lawyers 1998) p. 27,28.
[2] Arghya Sengupta, Independence and Accountability of the Indian Higher Judiciary (CUP 2019) 242.
The authors are 3rd year law students at National Law School of India University Bangalore
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