Are Judges' Transfers Really Not Punitive?

News of Dr. Justice S. Muralidhar’s transfer from the Delhi High Court to the High Court of Punjab and Haryana came as an unpleasant surprise to the legal community in Delhi. Universally regarded as a polite, yet firm, Judge Dr. Muralidhar cherishes our Constitutional values and has always been a proponent of free speech and citizen rights. True to his oath of office, he acted without fear or favour and was respected for the equal regard with which he heard all lawyers. This explains the outrage felt by all practitioners which was reflected in the resolution of the Delhi High Court Bar Association condemning his transfer.

His transfer also served as an unwelcome reminder of the transfer of other equally respected Judges of the Delhi High Court some years ago. While one report suggests that Dr. Justice Murlidhar’s transfer is a step towards his appointment as Chief Justice at the Punjab and Haryana High Court, there is nothing credible in the public domain today to support this theory. Other Judges have also been transferred alongside Dr. Justice Muralidhar and these collective acts of transfer are making practitioners question the process of transferring Judges and leading to unnecessary and unfortunate speculation within the legal community.

Article 222 of our Constitution deals with the transfer of Judges and states that the President may, after consultation with the Chief Justice of India, transfer a Judge from one High Court to another. This Article has been subject to extensive judicial review and interpretation and understanding the historical context may be helpful to understand its present day usage and contours.

The 1970s witnessed the supersession of multiple Judges in the appointment of the Chief Justice of India (CJI) and also a large number of cases of transfer of High Court Judges. In the post emergency days, a five judge Bench of the Supreme Court first had occasion in 1977 in the Sankalchand H. Sheth case to interpret the provisions of Article 222. While concurring with the Majority, Justice P.N. Bhagwati had held that the transfer of a judge from one court to another inflicts many injuries on the individual.

Considering these injuries, he noted that the consent of the Judge to be transferred, was part of the scheme and language of Article 222. He also held that if the power of transfer is vested solely with the Executive, it undermines judicial independence and eats into the basic feature of our Constitution. Subsequently, fresh events led to the filing, in 1981, of what is commonly known as the “First Judges’ Case.” This case held that “consultation” with the CJI in judicial appointments must be “full and effective.” However, the contention that the CJI’s opinion should have primacy was rejected, albeit noting that such opinion carries great weight.

In 1987, the Supreme Court Advocates on Record Association filed a Writ Petition, which came to be decided with another transferred case in 1993 in what is referred to as the “Second Judges’ Case.” A nine-Judge bench of the Supreme Court delivered its verdict and held that “consultation” really means “concurrence.” It was this judgment that gave birth to the system of “Collegium” and noted that as against the CJI’s individual opinion, it was the institutional opinion formed in consultation with the two senior most Judges of the Supreme Court which would require consideration. The “Third Judges’ Case” in 1998, enlarged the Collegium to a five-member body consisting of the CJI and the four senior most Judges of the Supreme Court.

In between the Second and the Third Judge’s case, in 1994 a set of cases, namely the K. Ashok Reddy case, were filed in the Supreme Court dealing specifically with the question of transfer of Judges of High Courts. The relief claimed in these petitions was a declaration that Judges of the High Courts are not liable to be transferred. The contention raised was that such transfers were likely to be influenced by “extraneous considerations leading to arbitrariness resulting in erosion of the independence of the judiciary.” It was further contended that the decision in the Second Judges’ Case, which excluded the power of judicial review, as regards the decision on transfer of judges, was in conflict with the decision of a larger bench in the Kesavananda Bharati case. It was also urged that Article 222 was “in substance a dead letter” since the power thereunder was incapable of exercise in the absence of guidelines provided in the Constitution itself.

The three-Judge bench of the K. Ashok Reddy case, who were all also a part of the nine- Judge bench in the Second Judge’s Case, were satisfied that all the above contentions raised had been adequately covered by the Second Judges’ Case. Accordingly, dealing with the contentions in the Reddy case it was held that the absence of norms and guidelines in Article 222 seems to be deliberate, as the power is vested in high constitutional functionaries, “and it was expected of them to develop requisite norms by convention in actual working”. Certain (non-exhaustive) norms were expected to be observed by the functionaries to regulate the exercise of their discretionary power in the matter of transfer of Judges. These norms included the expectation that the CJI would take into account the views of the Chief Justice of the High Court from which the Judge is to be transferred or the views of any Judge of the Supreme Court whose opinion may be of significance in that case, as well as the views of at least one other senior Chief Justice of a High Court, or any other person whose views are considered relevant by the CJI. This case also held that the power of transfer can be exercised only in “public interest”, i.e. for promoting better administration of justice throughout the country. It noted that transfers in accordance with the recommendation of the CJI cannot be treated as punitive or an erosion of the independence of the judiciary.

Relying on the nine-Judge decision in the Second Judge’s Case, the Bench in the K. Ashok Reddy case held that “The primacy of the judiciary in the matter of appointments and its determinative nature in transfers introduces the judicial element in the process, and is itself a sufficient justification for the absence of the need for further judicial review of those decisions, which is ordinarily needed as a check against possible executive excess or arbitrariness.”

It was also held that except on very limited grounds, these matters are not justiciable and the opinion of the CJI is determinative on the matter.

Does all the above hold true even today? Given how our Constitutional jurisprudence has evolved over the past 26 years is it not time to re-examine some of what the three Judge bench held in the K. Ashok Reddy case? And yet, could it not be said that the view taken by Justice Bhagwati 43 years ago in the Sankalchand Sheth case as regards transfers was perhaps the correct one with greater applicability in today’s time? With the judiciary missing no opportunity to uphold the basic structure doctrine and preserve at all cost its independence is there not a need for transparency in judicial functioning so as to dispel any notion of favoritism or bias? If transfers are based on “public interest” then does the public not have a right to know such reasons? And why should these reasons not be justiciable, especially at a time when even decisions of the President declining mercy petitions have been allowed to be challenged. Should not the material which is considered before or when the transfer of a Judge is being deliberated be shared with the concerned Judge and all stakeholders given that transfers are in “public interest” for promoting better administration of justice throughout the country?

Let recent transfers act as a catalyst to reconsider the policy pertaining to the transfer of Judges. Surely our Judges need some bit of ‘ring fencing’ to carry on their duties with a degree of certainty. It would also help for them to feel that their fellow Judges “have their back.” For now, Dr. Justice Muralidhar’s transfer is a great loss to the Delhi High Court. One hopes his initiative of the Bench hosting the tea party for members of the Delhi High Court on New Year is continued. And unless the resolution of his transfer is reconsidered, Dr. Justice Muralidhar’s presence, as also his trade-mark smile, will be missed. But there can hardly be any doubt that he will gain the same popularity in his new home at Chandigarh that he enjoys in Delhi.

Satvik Varma is a litigation counsel based in New Delhi. A graduate of Harvard Law School, he’s licensed to practice both in India and New York.