A transfer controversy

Reports of a set of proposed transfers in the higher judiciary attract protests, mainly from the legal community.

THE Central Government has reportedly set under way procedures for a batch of transfers involving the Chief Justices of three High Courts. Since the first hint of the plans came, this administrative move has slipped into a mode of denial, feigned ignorance and pretended indifference.

Official sources in the Law Ministry referred all enquiries to a particular functionary of the Department of Justice, who in turn directed them to the office of the Union Minister for Law and Justice. Officials in the secretariat of the Union Law Minister, however, pleaded that they could say nothing on the matter, since they knew nothing about it. Law Minister M. Thambi Durai remained unavailable for comment.

The transfers that are envisaged fill two vacancies, but create a new one. M.S. Liberhan, Chief Justice of the Madras High Court is under transfer orders to the Assam High Court in Guwahati. His successor has not been named. A.B. Saharya, Chief Justice of the Punjab and Haryana High Court in Chandigarh, is to be shifted to Rajasthan, and his place taken by O.P. Verma, Chief Justice of the Kerala High Court in Kochi. Justice A.C. Agarwal, seniormost puisne judge of the Bombay High Court, is then slated to fill the post vacated by Justice Verma.

Within days of the first reports, the Committee on Judicial Accountability (CJA), a watchdog body of senior Supreme Court advocates, sent off petitions to the President, the Prime Minister, the Law Minister, the Chief Justice of India, and several senior judges of the Supreme Court, insisting that the transfer orders be revoked. The initial apprehension was that the transfers had been signed into effect by the Prime Minister and sent to the President for notification. It was later learnt that the matter was not quite that advanced. The proposals had been initiated by the Chief Justice of India and endorsed by the Union Law Ministry and the Prime Minister was yet to grant assent.

Two weeks after the transfer move was first reported, public knowledge of it remained confined to hearsay. The virtue of transparency, which has in recent times been vigorously enjoined on all public institutions, was conspicuous in its absence. This provided the context for a variety of rumours to flourish, most of them attributed to "informed sources". And while media comment was initially rather restrained on account of the sensitivities involved, it did not take long for established norms of caution and prudence to be breached.

Kuldip Nayar, columnist and Rajya Sabha member, was the first to take the bit between the teeth. In a comment published on the editorial page of a prominent national daily, Nayar suggested that the transfer move was mala fide and contrary to the public interest. Measured against the norms fixed by the Supreme Court as the determinant factors in judicial appointments and transfers, the current move, Nayar argued, is in breach on every single count.

Nayar implied that there were political motivations behind Justice Liberhan's proposed transfer, and that it was intended solely to placate the insecurities of former Tamil Nadu Chief Minister Jayalalitha, whose party, the All India Anna Dravida Munnetra Kazhagam, is now a crucial partner of the ruling coalition at the Centre. But in initiating the process of removing Justice Liberhan from Chennai, M.M. Punchhi, the Chief Justice of India (CJI), also took the opportunity to settle a few personal scores, alleged Nayar.

Nayar's article was based in substance upon information gathered by the CJA. Prior to his elevation to the Supreme Court, Chief Justice Punchhi was a Judge of the Punjab and Haryana High Court. According to the CJA, he continues to have vital stakes in the constitution of the Chandigarh bench. Justice Liberhan had in 1993 proved an inconvenience - along with another judge of the Chandigarh bench, he had refused to endorse a proposal to elevate a former junior advocate in Punchhi's legal practice to the High Court. Although he had a favourable reference from the then Chief Justice of Chandigarh, M.N. Venkatachaliah as the CJI, had preferred not to disregard the adverse opinions submitted by two senior judges.

A reprise was enacted in 1996. Again, it was Justice Liberhan and a senior colleague on the Chandigarh bench - Justice R.P. Sethi, currently Chief Justice of the Karnataka High Court and reportedly under imminent threat of transfer - who had refused to endorse the appointment of the same individual to the High Court. As CJI, J.S. Verma again decided to let the adverse opinions count and not go solely by the favourable reference from the Chief Justice concerned.

The ongoing controversy is of a piece with the recriminations that preceded Justice Punchhi's elevation to the post of CJI. Justice Punchhi secured appointment as CJI despite grave public reservations occasioned by the leak of a confidential memorandum submitted by the CJA. It was reported that his predecessor as CJI, J.S. Verma, disregarded the CJA petition because the existing delicate balance of powers between the executive and the judiciary made it difficult to contemplate a breach in the principle of seniority.

In the contention between the institutions of governance, the balance of advantage shifted significantly towards the judiciary with the Supreme Court's ruling in the Advocates on Record Association case in 1993. Apart from enshrining the principle of the CJI's absolute primacy in the appointment of judges, the Advocates on Record ruling also laid down a set of norms on judicial transfers.

A majority of seven judges in the nine-member Constitution Bench then held that Article 124 of the Constitution, which requires a process of "consultation" with the CJI, in effect meant that his concurrence was essential before the President could appoint a judge to the higher judiciary. To guard against an arbitrary exercise of this power, the majority also prescribed that the Chief Justice should take into account the views of a number of his senior colleagues on the bench, or of judges from the High Courts concerned.

The dissenting views were expressed by Justice (later Chief Justice) A.M. Ahmadi and Justice Punchhi. Justice Ahmadi argued that the majority ruling stretched the constitutional requirement of "consultation" to "breaking point" by insisting that it should be interpreted to mean "concurrence" or "consent". In similar vein, Justice Punchhi reasoned that the phrasing of the Constitution required the executive and the judiciary to "interact in a spirit of mutuality and accommodation, and not act at cross purposes." The purpose was to have a "concept of plurality" which would not give any one authority a veto over the other.

These differences apart, there was general agreement within the Bench that the transfer of judges lay within the exclusive province of the judiciary. The only criteria advanced were the public interest and the absence of mala fide intent. Justice Punchhi's opinion, which is of current interest, was rather sharply put: "Transfers of judges from one High Court to another is almost the judiciary's internal affair. The role of the Chief Justice of India in that regard is primal in nature because this being a topic within the judicial family, the executive cannot have an equal say in the matter."

A majority of five judges, in an opinion authored by Justice Verma, refrained from placing any restraints upon the first or even subsequent transfer of judges, except the public interest. "It is reasonable to assume," held the majority, that "the Chief Justice of India will recommend a subsequent transfer only in public interest, for promoting better administration of justice throughout the country, or at the request of the concerned judge."

However, since all the proposed shifts fall within the category of "subsequent transfers", Justice Ahmadi's partial dissent may have a degree of relevance: "When a puisne judge is transferred to take over as a Chief Justice elsewhere, such a transfer would never be construed as penal because of the elevation involved in it, but where the transfer is a second one qua the individual, it is likely to be so interpreted and hence a far greater responsibility is cast on the Chief Justice of India during the consultation process to take every precaution to see that it is not so."

Despite all these guidelines, the judicial transfers proposed have excited adverse comment precisely because of the opacity of intent behind them. If the acrimony over Justice Punchhi's elevation to the judicial hierarchy was not sufficient indication, the current state of affairs points to the fallibility of the Supreme Court's ruling in the Advocates on Record case. Yet again, it points to the need to institute a national commission, which will definitively put judicial appointments and transfers beyond the reach of partisanship and bias.