On October 3, 2017, the Collegium of the Supreme Court of India, comprising its five senior most judges at the time, published its Resolution on its official website for the very first time.

The publication took place pursuant to a Resolution passed on the same date, with respect to “Transparency in Collegium System”. It was decided that henceforth, all decisions taken by the Collegium, indicating the reasons thereof, would be put on the website of the Supreme Court, with regard to cases relating to, inter alia, the transfer of High Court Judges.

The said Resolution further stated that it was being passed to ensure transparency, and yet maintain confidentiality in the Collegium system.

It is a matter of record that the aforesaid Resolution has neither been set aside, nor modified, and as such, is an order still in effect and binding all subsequent Collegiums till date.

It is in the context of the said Resolution that the recent Resolution of the present Collegium, dated February 12, 2020, assumes significance and becomes open to controversy.

By way of its “Statement” of February 12, the Supreme Court Collegium recommended the transfer of Dr. Justice S Muralidhar, from the Delhi High Court to the Punjab & Haryana High Court.

The “Statement”, as uploaded on the Supreme Court website, is devoid of any reasons – conspicuous by their absence – and is thus against the spirit of its own Resolution of October 3, 2017, passed evidently to ensure transparency in its functioning.

The aforesaid recommendation to transfer Justice Muralidhar has stirred a controversy in legal circles. There has been speculation that the transfer is of a punitive nature, with the Delhi High Court Bar Association calling upon its members to abstain from work for one day, while noting that such transfers tend to erode the faith of the common litigant in the justice dispensation system and further impede the free and fair delivery of justice.

There is also separate speculation that the transfer is in fact for the benefit of the Judge, keeping in mind his subsequent elevation as the Chief Justice of the Punjab & Haryana High Court.

It is extremely telling and disturbing that there is speculation on both sides, with the Bar and retired members of the Bench voicing their strong opinions for and against the said transfer. All this conjecturing could have been nipped in the bud, and indeed not even arisen, had the Statement of February 12 recommending the transfer followed its earlier Resolution of October 3, 2017, and indicated the reasons as specified.

The biggest eventual victim of this uncertainty and speculation is the institution itself, followed closely by the faith reposed in it by the litigant.

The non-disclosure of reasons for the transfer of judges causes another cascading unwelcome outcome. Since the reasons for the transfer of Justice Muralidhar have not been disclosed, it has led some to believe that the reason for the same is the result of executive interference due to his having passed Judgments that were not very palatable to the government.

Though it is hoped and prayed that this is not the case, however, even if that possibility is believed to be true, it would lead to a chilling effect. This could potentially be manifested in inhibition on the part of the judges and would discourage them from exercising, in letter and spirit, their Oath of Office as enshrined in the Third Schedule to the Constitution of India, to:

"...bear true faith and allegiance to the Constitution of India… duly and faithfully and to the best of my ability, knowledge and judgment perform the duties of my office without fear or favour, affection or ill-will…"

The importance and necessity of recording reasons can, of course, not be overstated enough. In Raj Kishore Jha v. State of Bihar, the Supreme Court opined,

“Reason is the heartbeat of every conclusion. Without the same, it becomes lifeless.”

It would not be incorrect to say that in certain circumstances, the disclosure of reasons for transfer would neither be in the interest of the concerned judge, nor of the institution at large. But this need would arise only in rare and exceptional cases.

Besides, had the present case fallen in the ambit of one of those rare, exceptional cases warranting non-disclosure of reasons, the Statement dated February 12 itself could have stated so, while further stating that the concerned Judge had been informed and communicated the reasons for such transfer, which, in any case it is hoped and expected was done.

The controversy regarding the transfer, however, does not end there. On February 26, a Delhi High Court Bench headed by Justice Muralidhar proceeded to hear a petition filed by Harsh Mander seeking registration of FIRs against certain politicians on the allegation that hate speeches made by them led to the violence continuing in Delhi since February 23.

The final order passed by the High Court was quite innocuous, inasmuch as the Court simply directed the Delhi Police to take guidance from the judgment of the Constitution Bench of the Supreme Court in Lalita Kumari v. State of UP and thereafter take a conscious decision on whether to lodge FIRs or not.

All this, while observing the undeniable and indisputable fact that the rule of law is supreme and that no one is above the law, and as such, listing the matter for further consideration the following day.

However, the order passed received considerable media coverage, with pithy headlines referencing oral observations such as ‘HC reads Delhi Police the Riot Act’, and ‘Why no FIR for hate speeches: Delhi High Court pulls up Police’, pointing towards a red-faced Delhi Police, which falls under the administrative control of the Union Home Ministry.

Soon after this order was passed, the very same day, the Union Ministry of Law & Justice issued a notification transferring Justice Muralidhar as a Judge of the Punjab & Haryana High Court and directing him to assume charge of his office in the same.

The timing of this notification is extremely suspect and raises further eyebrows, because, while the recommendation of the Collegium to transfer Justice Muralidhar was passed on February 12 , the notification came to be issued only a few hours after the passing of an order - which only followed well-settled, trite and established principles of law – in a contentious case, seemingly against the Delhi Police and crucial for the Executive.

What further lends even more credence to and grounds for suspicion in the matter is the fact that the while another recommendation for the transfer of another Judge, Justice Subramonium Prasad, to the Delhi High Court was made by the Collegium on the very same date it made its recommendation to transfer Justice Muralidhar, i.e. February 12, it is only the latter’s transfer that the Law Ministry has notified, while failing to act with the same alacrity in the case of Justice Prasad.

No reasons are apparent as to why the recommendation regarding Justice Prasad, also involving the transfer of a sitting judge from one High Court to another, was not notified at the same time and date as the transfers of Justice Muralidhar, along with those of Justices More and Malimath, all recommended vide a common Statement.

It is also strange that the transfer notifications of Justices Muralidhar, More and Malimath make a departure from the precedent of providing reasonable time, usually fourteen days, to a judge to assume charge of office in the transferred Court.

The President of the Supreme Court Bar Association, Dushyant Dave, has already criticized the manner and haste with which the transfer was notified as “absolutely malafide and punitive”. Union Law Minister Ravi Shankar Prasad has gone on record to state that the transfer was a routine one.

Certainly, the issuance of the notification transferring Justice Muralidhar was pursuant to a recommendation made by the Supreme Court Collegium and was routine inasmuch as the government was bound to do so.

However, the sheer timing of the same overshadows the routineness of the transfer. As Chief Justice (retd.) Pradeep Nandrajog recently said, albeit in a different context,

“When you do it in a secretive manner, then even your best intentions look very doubtful. It should have been done in more transparent manner”.

The author is an Advocate at the Supreme Court of India. Views expressed in the article are personal and do not necessarily reflect the views of Bar & Bench.