Lawyers write to SC Collegium opposing transfer of Madras HC CJ

Opposing the recommendation to transfer Chief of Justice of Madras High Court Sanjib Banerjee to Meghalaya, over 200 advocates have written to the Supreme Court Collegium questioning the need to transfer him within 10 months of assuming office and seeking “reconsideration” of the decision in “public interest.”

“The reasons for the transfer of any judge should be made transparent in the public interest, for the public ought to know if a judge is being victimised for his fearless actions or is being punished for his inconvenient actions,” the petition signed by 237 lawyers of the Madras High Court read.

The strongly-worded petition said that the transfer of Banerjee from a chartered High Court with a sanctioned strength of 75 judges to the High Court of Meghalaya with a current strength of two judges raises “disconcerting” questions while batting for greater transparency in the way judges are transferred.

“While transfers for better administration of justice may be necessary in principle, members of the Bar have a right to know why a competent, fearless judge and an efficient administrator of a large High Court where more than 35,000 cases were filed this year should be transferred to a Court where the total number of cases instituted in a month is on an average 70-75,” the lawyers said.

Pointing out that the transfer was recommended on September 16 but made public only on November 9, the lawyers said that this raises the “worrisome question of lack of transparency and opacity in decision making by the Collegium.”

They also said several orders upholding constitutional rights and values of free speech, secularism, free and fair elections, Right to Health and state accountability by Justice Banerjee might have earned him the “ire of those in power.” He has also castigated the Election Commission for failing to ensure Covid-19 appropriate behaviour during the TN election campaign.

They also referred to a crucial order he passed to protect media freedom and free speech by granting an interim stay of the provisions of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021.

Justice Banerjee is the second CJ of the Madras High Court to have been recommended for a transfer to Meghalaya in two years. In 2019, the then CJ V L Tahilramani resigned in protest after she was transferred to Meghalaya.

The lawyers said similar transfers in the past have led to speculations whether the transfer was caused due to improprieties by the concerned judge or whether there were external factors that “penetrated the decision making process when such strong pointers existed.”

“It damages an honest judge’s reputation and tends to lower the image of the judiciary in public. It is the secrecy that surrounds the Collegium’s decisions and lack of stated criteria that lead to a perception of arbitrariness. Ultimately, the judiciary as an institution stands to lose,” the lawyers said.

Explaining in detail the measures taken by Justice Banerjee to check corruption in the judiciary, they said the instant transfer would quell any such effort to strengthen the judiciary in the state.

“Historically transfers have been used to move upright and honest judges who passed orders against the executive to ‘safer’ and ‘less important’ locations. Such ‘punishment transfers’, as they came to be known during the infamous Emergency, send out an alarming signal that honest and fearless judges are subjected to political retribution and independence of the judiciary is under threat,” they said.

They said, unfortunately, the decision of the Supreme Court Collegium and the opacity around it seem to “set alarm bells ringing amidst the public and all participants in the justice system.”

“Lack of transparency and opacity in the functioning of the Collegium tend to erode the faith of the public in the functioning of the justice system. Former judges, legal scholars and jurists have been expressing their concern that the Apex Court has been functioning as an ‘executive ‘court. While there has been a refreshing change in perception in recent times, this gain should not be lost by an administrative decision such as this,” they said.

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