If HC Justices Muralidhar, Akil Kureshi can get transferred, won't trial judges be afraid? Kapil Sibal

Trial court judges sometimes refrain from giving bail in criminal cases because they may be risking a transfer or promotion opportunities by granting bail, Senior Advocate Kapil Sibal observed on Saturday.

Sibal remarked that even High Court judges like former Orissa High Court Chief Justice S Muralidhar (now practicing as a senior lawyer) and former Rajasthan High Court Chief Justice Akil Kureshi were transferred because they decided cases in a particular way.

"If judges of the High Court can be transferred, if they give decisions in a particular way - Justice Muralidhar is an example, Justice Kureshi is an example - then why should the subordinate court judge not be afraid of his transfer?" Sibal remarked.

He observed that the heart of the problem is that a judge's career may be affected by their decisions to grant or deny bail.

"Why do you think that in this country - even though the law is bail is rule and denial is exception - how many subordinate judges give bail to people? And why do they not given bail to the people? They (subordinate court judges) are worried, that if they give bail, somebody will say 'this is motivated'. So they think it is better not to give bail. You must ask the question - why are they afraid that if they don't grant bail, they may not get their promotion or they may be transferred? ... We know recently of a lady judge in the special court, granting a particular order to a particular eminent personality, that too within the political system - and immediately the judge was changed. This sends a signal - that the judge is going to be changed with this kind of decision and that you will also be transferred. No judge wants that," he said.

He added that this is tied to the manner in which judges in India are appointed. The present Collegium system involves centralisation of power that must be done away with, Sibal said.

"As long as you have a centre of power vested in a particular institution, which controls the subordinate courts, you will not get independence. We need to move away from a centralised system of control. You can't have the High Court on its own controlling everything in the subordinate judiciary. Just as you cant have the collegium now deciding who should be appointed to the Supreme Court. That is really the heart of the problem. Because concentration of power always leads to arbitrariness," he explained.

Sibal made the observation during a two-part lecture given by him at the Sikkim Judicial Academy on Saturday.

He went on to clarify that an All India Judicial Services or a National Judicial Appointments Committee (NJAC) are not viable alternatives to the Collegium system of judicial appointments.

He said that the alternative mode of appointing judges should, in any case, involve a wide range of stakeholders but exclude those who have an active stake in the present system.

"We have to make sure that we have a system in which appointments, promotions, disciplinary actions are vested in an authority in which all stakeholders are represented - men versed in law, eminent persons, retired judges, representatives of the government or who have been in government. But they must not be serving people within the system. If they are serving within the system, then they would have a stake in the system ... I don't have a clear solution to it, quite frankly. But at least the problems should be addressed. The solutions will emerge only if the problems are addressed," Sibal said.

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