The recent proposal to transfer Justice Jayant Patel from the Karnataka High Court to the Allahabad High Court, which led to the judge resigning, is yet another instance of the Supreme Court Collegium acting in a secretive manner, and not necessarily with any bona fides either and not making known what compelling public interest was sought to be thus served. This episode yet again made obvious the undesirable manner of functioning of the Collegium.
One speculation is that the transfer proposal originated from Chief Justice of India Dipak Misra himself. Whether the Collegium had assented or not is also a matter of speculation.
This speculative inference is attributable to two circumstantial facts. One is that Justice Patel has spelt out clearly in his letter of resignation that he was not inclined to accept a transfer of this nature – the second in his case, after having been transferred from his parent high court, the Gujarat HC, only 18 months ago.
The second circumstantial fact is Union law minister Ravi Shankar Prasad, when asked about the Justice Patel affair, telling reporters, “No comments. No proposal on transfer has been received by us,” indicating that the Centre had no knowledge of the proposed transfer. These indicate that Justice Patel had been sounded out on the transfer proposal without disclosing reasons.
High Court judges normally seek transfer to another high court when their kith and kin enter the bar in their parent high court. It is in consonance with guidelines evolved at the conference of the chief justices of the high courts, the CJI and other Judges of the Supreme Court. A transfer, when not sought for by the judge concerned or is without his consent, is viewed as a punishment transfer in legal circles.
Be that as it may, Justice Patel gracefully accepted his first transfer, after having served as a judge of the Gujarat High Court for about 15 years, to the Karnataka HC. In the short period he served there, he earned the respect and affection of the members of the Bar and Bench alike. Members of the Bar admired his professional functioning as well as his soft-spoken and gentle manners. Emphasis is laid on these qualities of Justice Patel only to make it clear that there was absolutely no complaint against him from any quarter which could have attracted the attention of the CJI or the approval of the Collegium for his transfer. From the reaction of the judge to the transfer proposal, it can be safely assumed that no specific reason was spelt out to him.
What overwhelming public interest compelled the CJI and the Collegium to propose the transfer, that too just days before what should have been his automatic elevation to chief justice of the Karnataka HC and just 10 months before his retirement, was also not indicated. Alas! Neither his elevation nor letting him retire peacefully seem to be to the liking of the powers that be. Justice Patel’s folly appears to be that he acted and functioned as an upright judge with a conscience.
While the government of the day may nurse some grouse against such an upright judge for some of his adverse judgements (such as in the Ishrat Jahan encounter killing), that can never be a reason for the CJI and the Collegium to transfer him. In the absence of any reason of public interest, the transfer proposal becomes completely arbitrary. It even smacks of mala fides.
While such a proposal may have been to the delight of the executive, both at the Centre and in Gujarat, the question is, why did it originate in the judicial wing, particularly from the CJI and the SC Collegium. It is in such situations that one realises how very inadequate and wanting our judicial system is in the matter of appointment and transfer of judges to the higher judiciary.
The secretive manner of the proceedings of the collegiums of the Supreme Court and the high courts, not keeping records of their proceedings, not even maintaining the minutes of the meetings, and not spelling out reasons for their decisions, these together are the bane of the administration of our judicial system. It is time such opaqueness made way for transparency.
The SC Collegium has now moved in this direction, having passed a resolution to put up the information relating to appointment of judges to the higher judiciary on the Supreme Court website. This is welcome. But while it may act as a safeguard against arbitrary proposals and decisions in the future, the case of Justice Patel’s proposed transfer remains a puzzle.
Secrecy in transparency
It is not the first time that the Collegium has puzzled people. On earlier occasions, when the claims of Justices Bhaskar Bhattacharya and A P Shah for appointment to the Supreme Court were overlooked, it did not spell out the reasons. What outstanding quality it saw in Justice P D Dinakaran in appointing him to the Supreme Court was never revealed.
On all these occasions, it was assumed that the personal predilections of the then Chief Justice of India played a role in such developments and no outside influence or pressure was noticed or discussed. In Justice Patel’s case, though, no such personal bias against him is discernible. Therefore, the only possible inference, though speculative, is that either the Collegium is out to please the executive or it buckled under the latter’s pressure. Either reason spells disaster for the independence of the judiciary. One ardently hopes such is not the reason.
Justice Patel’s direction for a CBI probe into the Ishrat Jahan encounter case, (State of Gujarat vs. Union of India), regardless of what effect it had on the political executive of the day, is a shining example of the independence of the judiciary and demonstrated in ample measure the fairness, firmness, courage, conviction and impartial outlook of Justice Patel as a judge.
Perhaps one way the SC Collegium can repair its tarnished image and redeem the independence of the judiciary is by proposing the name of Justice Patel for appointment to the Supreme Court and standing by it, even if the executive is not inclined or does not accept the recommendation the first time round. If this is done, the independence of the judiciary will not only be achieved, it will have been demonstrated in good measure.
In conclusion, bravo Justice Jayant Patel! “Abou Ben Adhem (may his tribe increase!) Long live the independence of judiciary.
(The writer is a former judge of the Karnataka High Court)
