Current policy has no logic

There is double jeopardy, when one is appointed in one court and then transferred to another, denying the right to practice in parent court.

I am reminded of this whenever I think of the transfer policy of High Court judges being followed by the Supreme Court.

No doubt the power of transfer from one HC to another is to be found in the Constitution. But when in 1963 some amendments were to be made, the then law minister, in order to remove apprehension of misuse of power assured Parliament that transfer of HC judges will only be done with the judge’s prior consent.

But in 1975, HC judges were the targets in a series of non consensual transfers because they were said to be too independent. The Supreme Court, one had hoped would recognise the danger to independence of judiciary and would strike down this provision, but rather it inflicted a self wound by continuing to uphold this power.

I fail to see any logic in the present policy of transfers. Normally, transfers may be explained by Supreme Court by relying on what is ironically called ‘uncle/nephew phenomenon’ - to transfer those judges whose sons or brothers are practicing in the same HC – though to me, this unnecessarily accepts an adverse assumption without any solid proof. But to transfer a judge at the initial stage is most unfair. There is double jeopardy, when one is appointed in one court and then transferred to another thereby denying him the right to practice in parent court.

The more damaging aspect of the transfer of judges is the practice of appointing outside chief justices and judges notwithstanding that at the Chief Justices’ Conference held in 2002, it was resolved that the policy of having outside chief justices of HC be discontinued. But the government was apparently not happy with it, because in such a case it would have no hand in the appointment because the senior-most judge of a HC would automatically have to be appointed the chief justice. Later on, however, the Supreme Court collegium yielded to the government suggestion of outside chief justices but the damage was done.

Neither India nor other countries like the US and the UK have this practice. In fact, in the US, in many states, the State Supreme Court Justices whether elected or appointed, are not posted outside the State. No one has found fault with this practice in the US or the UK. Why this gratuitous insult to Indian judiciary?

I have never understood the logic of transferring the senior most judge whose turn has come to head the court in which he has worked for 10 to 15 years and with the functioning of which and also the lower judiciary he is most familiar. To transfer him out of the state to a new court for a period of one or two years to which he is a total stranger, most likely not even knowing the names of his colleagues, is a strange concept of advancing the administration of justice. He may willy-nilly have to rely only on the opinion of a few select colleagues and officials which unfortunately may spell further disharmony in the HC. Is there any special reason why the judiciary wants to devalue experience and, thus, score a self goal and reduce its own effectiveness?

That transfer policy continues to defy logic has been brought to public notice very recently and rudely when I read in the news paper of appointment of nine judges in Punjab & Haryana HC. All of them, we are told, were asked to give their consent to be transferred any time at the discretion of the Supreme Court, though were given useless lolly pop of giving their three preferences of the states to which their transfers could be made.

I understand none of them has any relatives practicing in Punjab & Haryana HC. Three have already been ordered to be transferred. How a choice has been made and by what norms is unknown. So arbitrary and one may even say unsympathetic is the decision when the news is that amongst these three there is a lady judge, who has no parents and being unmarried, no immediate family she can take with her to the new strange place. 

Trauma of transfer
Let me make it clear that I have never seen or met any of these nine appointees, nor have I known the parents or relatives of any of them. My distress is because of the deep attachment I have to Punjab and Haryana HC, where I spent my best years at the Bar and where friends were gracious enough to elect me as President of the Punjab & Haryana High Court Bar Association un-apposed in 1967 – 68.

I also know closely the trauma of transfers from my experience during 1975 emergency. But then we were political animals and could bear the trauma namely, the family disruption, the isolation, tolerably well. But there is no justification for putting the politically neutral lawyers especially a single lady judge to the trauma of transfers.

I know I am sounding harsh, but let me in my defence call to aid the observations of Justice Holmes of Supreme Court of the US who said “I trust that no one will understand me to be speaking with disrespect of the law, because I criticise it so freely… but one may criticise even what one reveres... and I should show less than devotion, if I did not do what in me lies to improve it.”

(The writer is former Chief Justice of the Delhi High Court)