By: Prof G Mohan Gopal
Article 222(1) of the Constitution of India provides that “[t]he President may, after consultation with the Chief Justice of India, transfer a Judge from one High Court to any other High Court.” This power was very rarely used until 1976. According to data provided in the Supreme Court’s 1977 judgment in Union of India vs. Sankalchand Himmatlal Sheth, only 25 High Court judges were transferred in the first 26 years after the Constitution came in place. The power was then in the hands of the Union Government and by convention (not law), all these transfers were made with the consent of the concerned judges.
The power to transfer turned out to be a sleeping monster. During the Emergency, it was woken up and used to carry out a precision strike against independent judges. Sixteen judges were transferred in 1976 without their consent. Journalist and human rights activist Kuldip Nayar wrote in his book, ‘The Judgment: Inside Story of the Emergency in India‘, that “the transfers were a punishment and hence there was no question of consulting the judges themselves. The transfer of judges did have some effect on the judiciary: judgements began to be more and more tailored in favour of the government. Justice Sankalchand Himmatlal Sheth, who was then a judge at the Gujarat High Court, challenged his transfer and that stopped the transfer of 44 more judges.”
Forty-six years after the emergency, we are once again witnessing an outbreak of transfers of High Court judges at a pandemic level, with involuntary transfers exceeding levels experienced during the emergency. An analysis of the collegium recommendations uploaded on the Supreme Court’s website since October 3, 2017 indicates that a whopping 89 High Court judges, including 20 High Court Chief Justices, have been transferred in this short period of just over four years (an average of over 20 judges per year as against an average of about one judge a year in the first quarter century of the Republic of India).
In a single month, September 2021, some 34 judges were transferred, including six Chief Justices, amongst whom was the then Madras High Court Chief Justice Sanjib Banerjee. This is double the number of judges transferred during the Emergency. September 2021 will forever be remembered in the annals of Indian judicial history as ‘the month of the long knives’, as “bloody September”.
Although we don’t have any way of knowing whether this was indeed the case because of the secrecy surrounding transfers, some of these transfers may well have been with the consent of the transferred judges. Some others may have been to correct problems arising from the style or quality of work of judges even though neither the Supreme Court nor the union executive has administrative power to use transfers to ‘correct’ or ‘discipline’ High Court judges.
However, taken as a whole, these transfers are being perceived by the public defenders’ Bar and the independent lay public as ‘surgical strikes’ against judicial independence.
This is because transfers of individual independent, resolute and fearless judicial defenders of the rule of law and Constitutional rights are read by the public as a broader signal that the judicial system as a whole is opposed to judicial independence and the protection of rights. This is why there is such public dismay and protest against the transfers.
This perception in turn erodes public trust and confidence in the judicial system.
This erosion will escalate direct action and violence. This is what we saw in the prolonged farmers’ agitation when the courts failed to promptly and effectively protect rights.
At a minimum, the collegium needs to be more circumspect and cautious about the scale and quality of the transfers it is making.
What has been the impact of this now widely used power to transfer? The power to transfer, judicially restructured since 1977, has eviscerated the constitutional vision of administrative federalism in the judiciary with each High Court at the administrative apex of the judiciary of each state. High Court judges have in effect been subordinated administratively to the Supreme Court Collegium. Every High Court judge in India today is under the threat of involuntary and arbitrary transfer without any remedy.
Worse, it is widely believed that, like during the Emergency, some transfers are influenced by political interests, such as the three transfers to which the current Rajasthan High Court Chief Justice, Akil Kureshi has been subjected unjustly.
Justice Kureshi was first transferred to the Bombay High Court from the Gujarat High Court, where he was the second senior-most judge, and then the Collegium recommended his elevation as the Chief Justice of the Madhya Pradesh High Court. With the Executive refusing to elevate him to a big High Court, the Collegium later amended its resolution to transfer him to the Tripura High Court as its Chief Justice instead. When the Executive refused to elevate him to the Supreme Court despite his seniority, the Collegium transferred him yet again as the Chief Justice of the Rajasthan High Court as a consolation.
The threat of arbitrary transfer is in and by itself a grave threat against judicial independence. The power to transfer has become a toxic power that is damaging the independence of the judiciary. It no longer serves any legitimate function.
Why did this happen? Why is there a power to transfer High Court judges in the Constitution in the first place?
The rationale for giving the Union executive the power to transfer High Court judges has never been clear. The Government of India Act, 1935 did not have a power to transfer. There was no transfer provision in the draft Constitution presented to the Constituent Assembly by the drafting Committee. It was brought in by the drafting committee in the last stages of the drafting of the Constitution. It was discussed along with several “minor” provisions — there was no serious discussion about it in the Assembly.
Dr. B.R. Ambedkar’s speech on behalf of the drafting committee offered the most cogent reason for transfer power — “to strengthen the High Court elsewhere by importing better talent which may not be locally available” at the commencement of the Republic when there were few High Courts and a relatively small High Court Bar (circumstances that do not exist anymore).
However, after the Constitution came into effect, this original reason was soon forgotten. A new rationale was advanced by 1955 — promoting national integration by having one-third of judges of High Courts from out of state. This reason was also in course of time discarded and replaced after 1977 with a quite meaningless generic claim: “in the interest of better administration of justice”. Even this fig leaf has been abandoned. For example, a recent, undated and unsigned notice on the Supreme Court website says curtly, with absolutely no justification provided, “The Supreme Court Collegium in its meeting held on 16th September, 2021 has recommended transfer of Mr. Justice Sanjib Banerjee, Chief Justice, Madras High Court to Meghalaya High Court.”
An unstated rationale for Dr. Ambedkar to support inclusion of a Union power to transfer may reasonably be expected to have been to counter local feudal and caste oligarchies by “importing” judges with a modern, egalitarian outlook. We see this objective flash through for example in Sanjib Banerjee’s undated farewell letter to the Madras High Court in which he says to High Court staff, “My regret is that I could not completely demolish the feudal culture in which you serve.”
Off the record, it appears that a reigning unstated rationale for involuntary transfer — in addition to placating the executive to the extent it happens — appears to be ‘disciplining’ High Court judges short of impeaching them. This rationale cannot be disclosed as the Supreme Court does not have the power to discipline High Court judges.
How did the power turn into such a Frankenstein monster? That the power to transfer High Court judges would be a significant risk to judicial independence was recognized from the outset — although the risk was seen as emanating from the executive rather than from the judiciary. Dr. Ambedkar told the Constituent Assembly:
“We [the drafting committee]also took into account the fact that this power of transfer of judges from one High Court to another may be abused. A Provincial Government might like to transfer a particular judge from its High Court because that judge had become very inconvenient to the Provincial Government by the particular attitude that he had taken with regard to certain judicial matters, or that he had made a nuisance of himself by giving decisions which the Provincial Government did not like.”
India came to a fork on the road after the gross abuse of the transfer power during the Emergency. The post-emergency Parliament could have — and should have — deleted the power to transfer High Court judges given the Emergency-era experience of its abuse. Parliament did not do so. The Supreme Court also could and should have struck down the power of transfer in Article 222 of the Constitution as unconstitutional because it clearly undermines judicial independence by placing a Damocles’ sword over the heads of all High Court judges. It did not do so.
Instead, the Supreme Court used three landmark cases to keep the transfer power alive, secure control over it and turn it into an untrammelled, arbitrary administrative power of the judiciary. Sankalchand (1977) held that a Judge can be transferred without his or her consent, nullifying the long standing Executive convention requiring consent. In re Supreme Court Advocates Association (1993, the so-called “second judges’ case”) and Special Reference Case 1 of 1998 (the so-called “third judges’ case”) established judicial primacy over the transfer power and turned the Executive into a mere consultee. These two judgments allowed the shrouding of the transfer decisions in secrecy and put them beyond the reach of judicial review.
Since acquiring control over transfers in 1993 the Supreme Court also gradually dismantled — rather than strengthened — three neglected restraints on the power: (i) transfers can only be for a positive purpose in the public interest, in particular for strengthening the importing High Courts or for promoting national integration and for overcoming local prejudices in the case of chief justices; (ii) transfers should never be punitive or for extraneous reasons such as because governments object to the judicial decisions of judges; and (iii) transfers must be limited to the rarest cases. The late Justice Y.V. Chandrachud was a lone judge in Sankalchand who saw the crucial need of strengthening and enforcing these restrictions and thereby rendering the issue of consent irrelevant.
The result is that we have today what was never envisaged in the Constituent Assembly – the Supreme Court endangering judicial independence by holding administrative power of transfer over High Court judges through what is the most authoritarian, arbitrary, undemocratic, secretive and unaccountable power in the entire Indian system of governance today (along with the Supreme Court collegium’s power on appointment of judges). The judicially crafted legal framework for transfer is illegal and unconstitutional, violating well established norms for the basic structure values of rule of law and independence of the judiciary.
To protect the independence of our High Courts, the power to transfer High Court judges has to be abolished. (IPA Service)