Lofty language to justify transfer of Justice Nikhil S Kariel would not heal bruised feelings of lawyers

The common perception of lawyers is that a newly appointed Chief Justice of India should begin his stint by recommending appointments of new judges, which is a dire need of the time, rather than recommending transfers of judges, which usually comes last in the list of priority.

The current recommendations of the Supreme Court Collegium have belied the expectations of the legal fraternity. Be that as it may, the recommendations of the new Collegium have triggered widespread anguish and protests in three states.

Lawyers have no other weapon in their armoury except taking recourse of a strike in the absence of availability of a full-scale judicial review in the matter of transfer of a judge.

I have listened to the speeches delivered by the CJI and the Union Law Minister attentively. I am constrained to write this article to state that mere use of lofty language to justify the action of transfer would hardly help in healing the bruised feelings of lawyers and other stakeholders in the administration of justice.

The condemnation of the strikes by the speakers ignores the importance of the preservation of judicial independence, which is the sole object of the strike. If a judge discharging his duties fearlessly, without favour and ill-will, is not protected from the onslaught of the administrative machinery, it would be an end of the judicial system. It cannot be denied that in any national movement against injustice, lawyers have taken a lead role.

In fact, society expects from the lawyer the role of a sentinel on the qui vive to protect their fundamental rights and to question a decision which the society feels oppressive or arbitrary or not intended to serve any public purpose. A strike may halt the proceedings of courts for a day or two, but a decision that jeopardizes the independence of the judiciary impacts the administration of justice for all time to come.

It must be remembered - if I may quote my friend and Senior Advocate Percy Kavina - that “this is not a fight against judges or the judiciary, but it is for the judges and judiciary”.

Noted author Oswald, in his book Law of Contempt, has stated,

“An over subservient bar would have been the greatest misfortune that may happen to the administration of justice.”

Needless to clarify, the Gujarat High Court Advocates’ Association (GHCAA) has not protested every transfer in the past. During the last ten years, we have seen eight to ten transfers of judges from the High Court of Gujarat, but the Association has not resorted to strikes every time. We have seen that one of the judges from the Gujarat High Court whose transfer was recommended by the Supreme Court collegium was not transferred for reasons best known to the decision-making authorities. Another judge from the Gujarat High Court who was also recommended to be transferred obeyed the transfer order, and did not make his way to the Supreme Court. These are just a few instances to indicate the opaqueness of the Collegium system without imputing any motive to any particular judge or the institution as a whole.

At one, stage the then CJI openly declared that judicial work from the judge concerned whose transfer was recommended, would be taken away. What happened later with regard to the transfer of the judge concerned is a question to be answered by the authorities involved in the decision-making process.

These facts are in the public domain and can be verified from the Supreme Court archives and news websites. So, it would be inappropriate to tell common men what is the national perspective of an issue and what is the genuine public interest in such matters. Let it be clarified that the GHCAA does not resort to strikes casually and frequently.

The CJI said that strike was a good weapon against colonial rule and it would be an inappropriate tool in the present context in free India. Let me state that strike is a weapon of common people against the powerful and mighty State or other establishments. When common men have no say in the decision-making process, their only tool to show displeasure or anguish against the decision is to take a non-violent path of a strike or boycott.

The use of very good language by the Law Minister and the CJI creates a camouflage and does not bring to the fore what had weighed with the authorities in the matter of the transfer of Justice Nikhil Kariel, a fearless and unbiased judge. The Bar is the first and most trusted barometer to indicate the honesty and integrity of a judge. One can easily take the shelter of an omnipotent administrative phraseology that the transfer is in the public interest of administration of justice and administrative exigencies.

Whenever anyone questions a decision of the government or Collegium, a standard answer would be that 'you common men do not know the material against the person concerned'. Another thing that is said is that people at the local level may not understand the national perspectives of the issue.

We could take the route of questioning the decision of the Collegium by a petition for judicial review, but that would be the last option to be adopted when all other efforts fail.

In a properly instituted legal proceeding, the Central government, the Supreme Court of India and the concerned High Court can be asked to justify the transfer by disclosing the material that had weighed in taking a particular decision. In independent India, nobody can claim any privilege of keeping the reasons hidden in the files from public gaze. A claim of privilege by the Central government of not disclosing the reasons recorded on the file was repelled by the Supreme Court in SP Gupta's case.

It is hoped that the GHCAA is not compelled to take the legal path of questioning the decision by filing appropriate proceedings before an appropriate court.

This article is written just to state that the condemnation of the lawyers’ strike by both the dignitaries in their speeches was unwarranted, as the GHCAA is a most responsible Bar. It is hoped that the recent meeting between the delegation of the GHCAA and the CJI may not turn out to be an empty formality.

Asim Pandya is an advocate practicing at the Gujarat High Court.

Disclaimer: The views and opinions expressed in this article are those of the author's and do not necessarily reflect the views of Bar & Bench.