Transfer as a weapon

One of the Chief Justices sought to be transferred is Justice M.S. Liberhan, heading the High Court at Chennai. Pending before him are cases in which AIADMK chief Jayalalitha is an accused party. The judgment is also reserved on her plea to quash these cases. He has already heard arguments on the constitution of special courts to try offences when she was Chief Minister. His transfer means that the entire matter will have to be heard again.Justice Liberhan’s is not a simple case of transfer. Jayalalitha isnot happy with him. The support of her 27 MPs is crucial to the government. Law Minister M. Thambi Durai, her nominee in the Cabinet processes the proposal, which was sponsored by India’s Chief Justice M.M. Punchhi.

Justice Liberhan is from the Punjab and Haryana High Court. When he was a senior judge there in 1993 he crossed the path of Chief Justice Punchhi, then a Supreme Court judge. Justice Liberhan and Justice S.S. Sodhi wrote to Chief Justice of India Venkatachalaiah to oppose the appointment of S. Amba, once Justice Punchhi’s junior, as a High Court Judge. Amba was not appointed. His name was again opposed by Justice Liberhan when Punjab and Haryana High Court Chief Justice K. Sreedharan recommended it in 1996. Chief Justice J.S. Verma upheld Justice Liberhan’s objection.

Chief Justice A.B. Saharya is sought to be transferred to Rajasthan from the Punjab and Haryana High Court. He too had expressed his inability to recommend Amba. He may have earned the wrath of Chief Justice Punchhi on anothercount. He has forwarded the name of J.S. Kehar for appointment as a Judge of the High Court, not that of Mutneja, son-in-law of Chief Justice Punchhi.

Not long ago, Chief Justice R.P. Sethi of the Punjab and Haryana High Court paid the price for entertaining a writ petition challenging the discretionary allotment of thousands of plots of land in Haryana. The list of allottees read like a Who’s Who. He was first transferred to Jammu and Kashmir and later to Karnataka. Now, he is slated for Kerala. Chief Justice Om Prakash of Kerala goes to Chandigarh to succeed Chief Justice Saharya.Transfer of judges was never contemplated by the framers of the Constitution. Article 222 was added in 1956 after the reorganisation of states to enable new units to have outstanding judges from outside. Ashok Sen, then Law Minister, assured Parliament that no judge would be transferred without his concurrence. It was Indira Gandhi who began playing games with the judiciary. First it was the suppression of judges by posting thecommitted ones. Then the instrument of transfer was devised to chastise those who had remained uncommitted. The reason given was that the government wanted "outsiders" who would be immune to local pressures. When ministers from a state were accepted as arbiters on matters of administration and development, what was unacceptable about judges from the same state?Unfortunately, the Supreme Court ruled in the early eighties that the government was not obliged to follow the advice of the Chief Justice of India on transfers and appointments. The provision, it was interpreted, was for consultation, not concurrence. The judgment came in handy for Congress Minister of State Bharadwaj, who played havoc with the judiciary at the behest of Mrs Gandhi. Former Chief Justice P.N. Bhagwati, who wrote the main judgment, admitted to me during a conversation last year that he had been in error.

Now the pendulum has swung to the other side. The Chief Justice of India rules the roost. The earlier judgment was reversed in 1994(Supreme Court Advocates on Record Association versus Union of India and others). It was upheld that the opinion of the Chief Justice of India was `determinative’. However, it was laid down that the opinion formed by him was to be collective, after taking into account views of his senior colleagues. Former Chief Justice Verma told me in an interview when he was in office that he consulted not only the seniormost judges but also senior members of the Bar.Chief Justice Punchhi did not consult on the five transfers either Justice A.S. Anand or Justice S.P. Bharucha, next in line in that order. In fact, the very transfer policy has been violated. The practice is to transfer such judges or Chief Justices as have had a tenure of more than a year. Chief Justice Liberhan was moved from Allahabad to Chennai less than a year ago. So is the case with Justice Saharya, who was been transferred from Delhi to Chandigarh and that of Justice Sethi, who was first transferred from Chandigarh to Srinagar, then from Srinagar toBangalore and now to Trivandrum.

The restoration of power to the Chief Justice of India has not worked ideally. Practically every judge visiting Delhi calls on him or leaves his visiting card. The queue of callers is unending. But the Prime Minister does not have to sign on the dotted line. The judgment says that "…the power to transfer must, however, be exercised only in the public interest". Neither giving in to Jayalalitha’s demand nor compliance with Chief Justice Punchhi’s wayward proposal achieves that.

The National Agenda says: "We will set up a National Judicial Commission which will recommend judicial appointments in High Courts and the Supreme…" Why not remit the power to transfer to this Commission, if the obnoxious instrument has to be retained at all? At present the transfer is like the sword of Damocles hanging over heads of High Court judges and Chief Justices. Some of them may try to save their skins by following the dictum of quid pro quo, eroding of the independence of thejudiciary.

If the secret of liberty is courage, as Chief Justice Punchhi declared at Kochi, Chief Justices Liberhan, Saharya, Sethi and the others have shown extraordinary courage by not recommending the names of the undeserving. The Tamil Nadu State Committee of the All India Lawyers’ Union has done well in pointing out that the transfers "undermine a healthy judicial system". Bar Associations all over the country should take up the cause.