Author: Chief Editor, Team Lawgic

Published on: 03.02.2023

The history students had the privilege of going through many instances wherein the different classes of society have called for a strike to raise a voice against the arbitrary actions of the powerful ones. The call for strike in recent times is a rare sight as the public at large has become much more tolerant to a lot of ongoings and happenings in view of the “What can be done” attitude. The students of law in their first year itself are given the examples of such strikes and satyagraha movement to make them understand the power of strike and non-cooperation. So, who better could resort to the powerful weapon of strike than the Black Coat Professionals-Lawyers. But as it is said with great powers come great responsibility so is the case when we talk about lawyers who very well are aware about the effects and impacts of strike especially when the strike in form of abstaining from work is bound to cause much inconvenience to the justice delivery system. But when it comes to the very system being affected the weapon of strike is not only to be used but the same is to be sharpened first and then needs to hit at the right spot at the right time without any delay and without any excuse of being powerless. This is what makes the weapon brutal and that is what exactly the lawyers from the Gujarat High Court Advocates Association did when the foundation of the system was under an impact. A rare sight was seen in the court room of the Honorable Chief Justice of Gujarat High Court when all of a sudden on Thursday the 17th November, 2022 at around 12 15 PM when the entire court room all of a sudden turned out to be jam packed and an obvious question fell from the mouth of the Chief Justice that why such a crowd all of a sudden. The response from a senior member of the bar was what is important and that was “We are here to mourn the death of independence of judiciary.” What followed is an interesting dialogue between the members of the bar and the bench. The concern was with regards to news article published with regards to the transfer of an honest, upright, strong judge of Gujarat High Court to Patna High Court. With exchange of views and some discussion the crowd dispersed and the association passed a resolution in the afternoon hours to immediately abstain from work from the second session of the very same day. The strike was called and it was decided to abstain from work indefinitely till there is a solution to such transfers which were clearly (in the eyes of the bar) motivated ones. 

But how can one say that it is a motivated one especially when the system that the lawyers were having a grievance against is a system that has evolved by way of judicial precedents and has been considered as a gift of judicial interpretation of the concept of basic structure read with the doctrine of separation of powers. It is the decision of the Collegium comprising the Chief Justice of India along with 4 senior-most judges of the Supreme Court. A system that is brought into existence because of the three decisions of the supreme court itself which are fondly mentioned as “First, Second and Third Judges Case”.

The explanation of the procedure for the transfer of High Court Judge is quite easy if the Constitution of India is given a glimpse and the first provision to strike our view is Article 222 which provides for the transfer of High Court judge from one High Court to another.

“222. Transfer of a Judge from one High Court to another

(1) The President may, after consultation with the Chief Justice of India, transfer a Judge from one High Court to any other High Court.”

Simple reading and a Simple conclusion is

“President’s will + Chief Justice’s consultation = High Court Judge Transfer”

But if it was so simple then why the series of decisions are required to be read and why there is chaos on a transfer of a High Court Judge? Here comes the necessity of interpreting the provisions of the Constitution keeping in mind the ethos of the Constitution. Even before the first judges case was decided the question to transfer of a High Court Judge by the executive was called into question by a judge of Gujarat High Court and the test of the provisions for transfer of a High Court Judge started. (Mockingly the tests are still not over till 2022). In the case of  UOI vs S H Sheth as reported in AIR 1977 SC 2328 the apex court has refrained from reading anything into the provisions of the Constitution and just laid down a simple law that it is the wish of the President with the consultation of the CJI that a transfer can be effected and the consent of the transferee judge is required only as a matter of courtesy and not as a mandate of the constitution. This was a time when the appointment and transfers were majorly under the control of the Executive wing. A lot of transfers across India were witnessed and a lot of criticism was flaked against the executive for such transfers which clearly raised concern for the independence of the judiciary. One such transfer of the Late Justice P D Desai was also proposed and the same was tooth and nail opposed by the very same Gujarat Bar by calling a strike for a period of around 2 and a half months. The opposition from the bar itself shows that the Judge is quite popular amongst the members of the bar which is the actual barometer for the virtues of a judge.

            Time was there when the only powers the judiciary had was with regards to the interpretation of the law and its enforcement through the powers available under the constitution and the provisions of the contempt of courts act. It was the First Judges case (S P Gupta vs Union of India reported in AIR 1982 SC 149) happened wherein the Supreme Court while dealing with the powers of appointment available to the Central Government did hint that there is a line that is being crossed, but did not lay down any specific principle to take the powers in their own hands. The question of transfer of a High Court Judge from one High Court to another High Court was also deliberated upon and the question of consent was given due consideration. The question of transfer in public interest was kept open and out of the scope of judicial scrutiny.

It did not take much time for the Judiciary to realize that there needs to be a better system for the appointment of judges so as to adhere to the principles of the Constitution especially the Basic Structure Doctrine and the Doctrine of Separation of Powers. The question with regards to the primacy of the opinion of the Chief Justice and Justiciability of the same including the bench strength of the High Courts was referred by the Supreme Court in the case of Subhash Sharma vs Union of India reported in 1990 (2) SCR 433 to be put to consideration before a bench with larger strength. Two questions were formulated by the referring bench but when the petitions were heard and decided the issue at large was considered and adjudicated by the Supreme Court in the case of Supreme Court Advocates on Record Association reported in AIR 1994 SC 268-Second Judges Case. The Supreme Court founded the collegium system by way of this judgment wherein the question as to the plurality of the opinion of the Chief Justice was considered and the supremacy of the opinion of the collegium was finalized. The Executive has been given a considerable say in the method, but ultimately, when the collegium reiterates an opinion, the same is bound to the executive, which is clearly laid down in the Second Judges Case. It is in this decision the Apex Court while considering the scope of Article 222 was pleased to lay down the governing principle of transfer which is to be considered by the Collegium. The outcome of the decision was that a transfer order is to be founded on the principles of “Public Interest”, “No Consent is Required”, “Power to transfer can be exercised more than once”, “Proposal for transfer is to be initiated by CJI led collegium”, “Recommendation binding on Executive” and “Not Justiciable in the Court of law except on the ground of transfer made without a recommendation from CJI”.

            As expected (but delayed), a presidential reference was prayed for much clarification on the second judges case which resulted in the Third Judges Case being the decision Presidential Reference as reported in AIR 1999 SC 1 and there was further deliberation on the formation of collegium but the principles of transfer principally remained the same. The formation of a collegium for the purpose of the transfer was enhanced to 1+4 judges of the Supreme Court Collegium. One more additional feature introduced by this decision is that the views of the Chief Justice of the Original High Court and the Transferred High Court is also to be taken into consideration. The decision of transfer can be subjected to review in case any of the essentialities as laid down are not considered.

            The Collegium system was again put to test with the introduction of 99th Constitutional Amendment and the NJAC Act. Before any changes could have been even put in action the challenge was brought before the SC. It is rightly said that once you have the powers then you don’t like to let go. The same followed fate, the Supreme Court struck down the Constitutional Amendment as well as the act providing for a mechanism that included the introduction of members as Law Minister and eminent persons in the decision-making process for the appointment of judges. A distinct feature of the process for selection of eminent persons was that they were to be selected by a panel of CJI, PM and the Leader of Opposition. How so ever beautiful and transparent the composition may seem but the powers as entrusted in the Collegium were bound to remain unshattered as the Supreme Court was not willing to let go of that powers from their hands and accordingly on the Doctrines of Basic Structure and Separation of Powers they struck it down in the decision of Supreme Court Advocates on Record Association vs Union of India reported in 2016 (5) SCC 1. Something interesting in the minority view as laid down by Justice Chelameshwar also requires special consideration as the 16 instances of transfer during the period of emergency were also highlighted when the transfers were under the control of the Executive. Justice Chelameshwar also raised concerns about the transfer of judges under the Collegium regime without there being any justifiable reasons for such transfers.

            So now we are back to square one when we talk about the transfer of a High Court Judge that the process can be initiated and put in motion only on the recommendation of a Supreme Court Collegium of 1+4 judges wherein they are supposed to consider the views rendered by the Chief Justice of the High Court from where the transfer is sought and also the views of the Chief Justice of the High Court where the transfer is to be affected. The principles are untouched as laid down in the Third Judges Case which requires the elements of Public Interest and the essentiality of recommendation originating from the Supreme Court Collegium. The concerns raised by Justice Chelameshwar for transfers are still ringing bells when we see the last few years. There is a feeling that prevails amongst the public that such transfers are mostly influenced by the Government in view of the orders passed against the government by such strong and upright judges. The hardest victim of such transfers is definitely the High Court of Gujarat which witnessed the transfer of Justice Jayant Patel, Justice Akil Kureshi and Justice Paresh Upadhyay who were popular with the members of the Bar. Though the members raised a grievance against the transfers, but they were affected and the loss occurred to the High Court of Gujarat. But this time, the attempt at transfer was resisted by the Bar and the same yielded a sigh of relief for the time being. Let us hope no such further adventurism in the name of Public Interest affects the actual interest of justice and the interest of the bar which is even otherwise running short of good and justifiable orders being passed by the Judges of the High Court.

The last words to add to the issue is Transfer of an honest and upright judge may be a gain for receiving High Court but the loss it causes to the giving High Court is something unexplainable as it directly amounts to the effective administration of justice as the impact of such transfer on such other Judges is something that is reflected in the reduction of positive orders in favour of effective justice.

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