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Mainstream, VOL LII No 50, December 6, 2014

Self-inflicted Wounds Seldom Heal

Sunday 7 December 2014, by Rajindar Sachar

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 High Court 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 the apprehension of misuse of power assured Parliament that the transfer of the High Court judge will only be done with the judge’s prior consent.

But in 1975 the High Court judges were the target in a series of non-consensual transfers because they were said to be too independent. The Supreme Court, one had hoped, recognising the danger to the independence of the judiciary 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 the Supreme Court by relying on what is ironically called the Uncle/Nephew phenomenon, namely, to transfer those judges whose sons or brothers are practising in the same High Court —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 a double jeopardy, when one is appointed in one court and then transferred to another thereby denying him the right to practice in the 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 High Courts be discontinued. But the govern-ment was apparently not happy with it, because in such a case it would have no hand in the appointment since the seniormost judge of a High Court would automatically have to be appointed the Chief Justice. Later on, however, the Supreme Court collegium yielded to the government’s suggestion of outside Chief Justices and the damage was done.

Neither in the past precedents of India nor of other countries like the USA and UK this practice prevails. In fact in the USA, 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 USA or UK. Why then this gratuitous insult to the Indian judiciary?

I have never understood the logic of transferring the seniormost judge whose turn has come to head the court in which he has worked for almost 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 High Court. Is there any special reason why the judiciary wants to devalue experience and, thus, score a self-goal and reduce its own effectiveness?

Let us not indulge in the hypocrisy of judges being tigers and fiercely independent—yes they should be but practical life is different. We know to our shame how apparently Supreme Court Judges caved in during the Emergency (1975) and how the threat of transfer kept many on the quiet. Do not forget judges come from the same background as the rest of us mortals.

That transfer policy, which continues to defy logic, has been brought to public notice very recently and rudely when I read in the newspaper of the appointment of nine (9) judges in the Punjab and Haryana High Court. 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 the 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 relation practising in the Punjab and Haryana High Court. Three (3) have already been ordered to be trans-ferred. How a choice has been made and by what norms is unknown. So arbitrary and, one may even say, unsym-pathetic 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. I am quite sure that if the executive had transferred any officer in such circumstances the Supreme Court would have pontifically reprimanded the executive to justify its arbitrary and discretionary anti-woman attitude—sarcastically this action of the collegium has given a justifiable occasion to retort loudly: “Physician, heal thyself first.”

Let me make it clear that I have never seen or met any of these nine (9) appointees, nor have I known the parents or relations of any of them. My distress is because of the deep attachment I have to the Punjab and Haryana High Court, where I spent my best years at the Bar and where friends were gracious enough to elect me as the President of the Punjab and Haryana High Court Bar Association unopposed in 1967-68. So any decision touching the High Court by a closed Masonic type of mysterious working of the collegium naturally disturbs me.

I also know closely the trauma of transfers from my experience during the 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 and tragically that too at the hands of the family head—the collegium of the Supreme Court.

I know I am sounding harsh, but let me in my defence call to aid the observations of Justice Holmes of the Supreme Court of the USA, 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 author, a retired Chief Justice of the Delhi High Court, was the Chairperson of the Prime Minister’s high-level Committee on the Status of Muslims and the UN Special Rapporteur on Housing. A former President of the People’s Union for Civil Liberties (PUCL), he is a tireless champion of human rights. He can be contacted at e-mail: rsachar1@vsnl.net/rsachar23 @bol.net.in

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