Plea challenging transfer of Chief Justice VK Tahilramani to Meghalaya: Madras HC reserves orders

The Madras High Court today reserved orders in the PIL challenging the recent Collegium resolution transferring Chief Justice VK Tahilramani to the Meghalaya High Court..Following a mentioning on Wednesday, the matter was listed today for deciding its maintainability before a Division Bench of Justices M Sathyanarayanan and N Seshasayee.The petitioner in the case, Advocate M Karpagam, contends that since the Collegium proposal is in the nature of an administrative order, it is amendable to the writ jurisdiction of the High Court. Appearing for Karpagam today, Advocate R Prabakaran challenged the Collegium resolution, arguing that it was made “without making any reference to the President (of India).”.Relying on Article 222 of the Constitution, he argued that the decision to transfer judges between High Courts could be taken only after consultation with the President. Article 222 deals with Transfer of a Judge from one High Court to another and states that:.“The President may, after consultation with the Chief Justice of India, transfer a Judge from one High Court to any other High Court.”.While the Collegium may make decisions concerning the appointment of judges, Prabakaran contended that the President must be consulted before judges can be transferred. The hearing was also privy to several interesting comments exchanged on the topic, and other related issues..As part of his initial arguments, Prabakaran submitted that the independence of the judiciary, being part of the Constitution’s basic structure, must be insulated from any interference, which would also include judicial interference. The rule of law is not the rule of a few men, he argued..On insulating the judiciary from interference .While clarifying that the Bench was not taking a side for the present, but rather trying to understand the plea from different dimensions, Justice Seshasayee commented on how judges themselves self-insulate from external influences as part of expected self-discipline. He observed that judges provide a service that is akin to any other service to a democracy. Anyone in a public office has to abide by the rule of law, he orally observed. The Bench opined that such discipline comes from the judge himself..The Bench also had occasion to remark that the Court is expected to shield itself from the bouquets and brickbats it receives from the media in modern times. While noting that English judges (presumably of earlier times) did not even touch the newspapers, the Bench commented,.“[On] social media, you [judges] are abused, you are cheered… [We receive] tons of ‘love letters’ … threatening letters .. Are we not insulating ourselves from that?… [a judge] has to insulate himself from every factor that affects his conscience…“.High Court may not be the right forum for the relief sought.Advocate Prabakaran argued that there are some ambiguities in the Constitution as regards the transfer of judges. He also contended that Article 222 was inserted on the premise that there will be an All India Judicial Service, which is yet to come into existence..As it stands, he asserted that the President has to first decide on the question of transfer, and not the Collegium. Over the course of submissions, Prabakaran also mooted instituting a procedure where a Full Court may be convened to decide on the transfer of High Court judges, so that the decision is not left to a few men..In response, however, the Bench observed that what is being sought would require a review of Supreme Court precedents (particularly the Three Judges cases) right from SP Gupta’s case. The Bench pointed out that such review cannot be made by the High Court. It was also orally observed that many of the concerns raised by the arguing counsel has been addressed by the Supreme Court in the Ashok Reddy and the NJAC cases. In this backdrop, the Court pointed out that it is bound to follow the law laid down in these cases..While the matter may have been brought in public interest, the Bench opined that the appropriate forum to present the petitioner’s concerns would be Parliament or the Supreme Court..As the hearing drew to a close, Prabakaran also made brief submissions to urge for the disclosure of the reasons underlying Collegium resolutions..“Nothing is in the public domain”, he said..The abrupt proposal to transfer Chief Justice Tahilramani to the Meghalaya High Court earlier this month had raised eyebrows, given that she was the senior-most judge among High Court judges in the country. Before being appointed as Madras High Court Chief Justice, Tahilramani was heading the Bombay High Court as its acting Chief Justice..Days after the controversial transfer resolution was passed, Chief Justice Tahilramani submitted her resignation on September 7. Since then, there has been no sitting in the Chief Justice’s Court (Court hall 1) at the Madras High Court..In the ensuing days, protest was registered over the controversial proposal from various quarters, including associations of the Madras Bar. On September 10, lawyers across Tamil Nadu also carried out a one-day court boycott..The rising chorus of protest against the transfer of Tahilramani CJ also prompted the Collegium to issue a statement revealing that it has no hesitation in disclosing reasons for transfer of judges, if found necessary..Bar & Bench is available on WhatsApp. For real-time updates on stories, Click here to subscribe to our WhatsApp.