Tuesday 23 April 2024

News Analysed, Opinions Expressed

Judge Transferred or Justice Transferred?


The transfer of Justice Patel from the Karnataka High Court raises an important question: Did the Supreme Court follow its own observations on transferring judges?

Transfer of High Court Judges is usually a routine affair. But the transfer and subsequent resignation of Mr Justice Jayant M Patel of the Karnataka High Court has raised a storm in India's judicial community. Justice Patel resigned after the Supreme Court Collegium transferred him to the Allahabad High Court.

The transfer means that Justice Patel lost the opportunity to become Chief Justice of the Karnataka High Court, where he was second in seniority, likely to succeed Chief Justice S N Mukherjee after he retires on 9 October. In the Allahabad High Court, he would have been relegated to third in seniority. When appointing Chief Justices, the Supreme Court Collegium usually (but not always) goes on seniority.

The transfer is even more inexplicable when the Karnataka High Court has less than half the sanctioned strength of judges. Justice Patel has been transferred out, but no new appointments have been made. What is more, this is Justice Patel’s second transfer. He was earlier moved from Gujarat to Karnataka.

When he was Acting Chief Justice of the Gujarat High Court, Justice Patel had ordered the Central Bureau of Investigation (CBI) to inquire into the murder of Mumbai teenager Ishrat Jahan by Gujarat police officers in 2004. The Gujarat Police claimed that Jahan and her three companions were terrorists conspiring to kill then Gujarat CM Narendra Modi. The CBI investigation ordered by Patel led to charges being filed against several senior police officers and deeply embarrassed Modi's government.

The judicial community is up in arms. The Karnataka State Bar Association has asked lawyers to abstain from work on 4 October to protest the transfer. In Gujarat, High Court lawyers boycotted work on Wednesday.

The Campaign for Judicial Accountability and Reforms (CJAR) has condemned the transfer, pointing to Justice Patel’s order directing a CBI investigation into the controversial Ishrat Jahan fake encounter case. It says he is “being victimized for his courage and commitment to take on cases that went against the political establishment”.

The CJAR has demanded that the SC Collegium's eligibility criteria and process for selection and transfer of judges are made public, that names of short listed candidates with their eligibility criteria are disclosed, along with details of why they were selected over those who were not. It wants minutes of all SC Collegium meetings to be made public, to ensure that judicial appointments are free from arbitrariness, nepotism or political considerations.  

The Collegium, which recommends appointment and transfer of Judges, comprises the five seniormost Justices of the Supreme Court. At present its members are Chief Justice of India Dipak Misra, and Justices Jasti Chelameswar, Ranjan Gogoi, Madan B Lokur and Kurian Joseph. It is not known if any collegium member dissented to the decision to transfer Justice Patel.

'Supreme Court Advocates On Record Association vs Union of India, 1993' is the case that effectively gave all powers to appoint judges to the judiciary and gave the Supreme Court Collegium the right to deal with transfers of judges and how they should be handled.

Referring to Article 222(1) of the Constitution, which gives the President the power to transfer judges, this 1993 judgment stated: “There is nothing in the language of Article 222(1) to rule out a second transfer of a once transferred judge without his consent but ordinarily the same must be avoided unless there exist pressing circumstances making it unavoidable. Ordinarily a transfer effected in public interest may not be punitive but all the same the Chief Justice of India must take great care to ensure that in the guise of public interest the judge is not being penalised.”

Justice Patel was being transferred for a second time. It is clear from Justice Patel’s resignation that he did not consent to the decision. If at all there were "pressing circumstances making it unavoidable” or the decision was in “public interest”, what were they?

We will never know.

The Collegium’s decisions are not made public. There can be no public scrutiny of its decisions. Moreover, the Supreme Court has made it clear that the Collegium need not justify its decisions. That makes it possibly the only constitutional body in India that is accountable to none but itself in a democracy that is built on the principle of checks and balances.

Disclaimer: Views expressed above are the author's own.

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Ashwin Tombat

Ashwin Tombat has been the Editor of Gomantak Times and Herald. Worked as an Associate Editor of national magazine Gentleman in Mumbai, before shifting to Goa. Loves sailing, also participates in Marathons. Has worked as an activist in students's union and trade unions in Maharashtra. Also an artist of Street Theatre during student days.


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