ADVOCATES in Chennai are leading a protest against the reported proposal for the transfer of the Chief Justice of the Madras High Court, M.S. Liberhan, at a point of time when several cases of public importance have been heard by the First Bench that includes him, and when judgments in the cases are awaited. These matters include writ petitions filed by former Tamil Nadu Chief Minister and All India Anna Dravida Munnetra Kazhagam (AIADMK) general secretary Jayalalitha challenging the setting up of special courts to try cases of corruption against her, some members of the Ministry she once led and some bureaucrats.
N.G.R. Prasad, president of the Tamil Nadu State Committee of the All India Lawyers' Union, which is leading the protests, said: "The proposed transfers undermine the authority of law, and are against the public interest." Prasad pointed out that several cases relating to the Minimum Wages Act, Central sales tax, Employees' State Insurance and the Private Schools Act have also been heard by the First Bench over a period of time and judgments have been reserved. The First Bench, which is also the Green Bench that handles environment-related issues, has heard several important cases. According to Prasad, if Justice Liberhan is transferred, these cases would have to be heard again, an exercise that would take several months to be completed.
THE sixth biennial conference of the All India Lawyers' Union held in Chandigarh on April 8 and 9, in a resolution, said that there seemed to be no principle involved in the proposed transfers, and termed the move arbitrary. The move would, the resolution stated, erode the independence of the judiciary further. The resolution stated that the transfer policy cannot be used for extraneous purposes or to paralyse the functioning of judges. Until the existing mechanism for the appointment, removal and transfer of members of the superior judiciary is replaced by a national judicial commission, such powers should be exercised sparingly, and with care and circumspection, the resolution said.
The advocates launched their protest action through peaceful methods such as meetings. They sent memorandums to the President of India and the Chief Justice of India. In the next phase, they would plan agitational forms such as dharnas and processions.
On April 16, V. Prakash, a young advocate, went on a 72-hour "call attention fast"in the High Court premises asking for "accountability" in the appointments and transfers of High Court judges. Prakash asked: "Why this proposal to transfer Justice Liberhan to Guwahati when he came to Chennai only in July 1997? Justice Liberhan has not requested for a transfer."
According to Prakash, in the S.P. Gupta versus the Union of India case, the Supreme Court, while dealing with the issue of transfer of High Court judges, held in 1982 that lawyers had the locus standi to question transfers, and that transfers should be in the public interest and should not be punitive. This was the ruling of a seven-member Bench. In 1993, in the Advocates on Record case, a nine-member Bench of the apex court overruled its earlier view; this was followed in the Ashok Reddy case too. It was held that the transfer of a High Court judge was not judicially reviewable except when the affected judge challenged it on the limited ground that there was a lack of consultation among the Chief Justice of India and senior judges of the Supreme Court on the transfer. The Supreme Court said that members of the Bar or Bar associations could not challenge the transfer of a High Court judge. With regard to appointments to the higher judiciary, the Supreme Court held that they were not justiciable.
The majority view here was that the transfer of a High Court judge was not the individual decision of the Chief Justice of India, but a collective decision taken by him in consultation with senior judges of the Supreme Court. The Bench said that there was, therefore, no need to fear any arbitrariness or bias with regard to a decision on the transfers.
R. Vaigai, president of the Chennai unit of the All India Lawyers' Union, however, said that there were no proper norms for the transfer of High Court judges.
According to Vaigai, the manner in which the transfers had worked was "highly unsatisfactory." She said: "If executive actions are subject to judicial review, we fail to see how the administrative actions of the Chief Justice of India are not amenable to judicial review, and cannot be challenged, except by the affected judge himself, that too on the limited ground of lack of consultation. This undermines the very judicial system." She added: "Each one of these cases has been heard for several days together... Unless there are compelling reasons, what is the justification for the transfer of the Chief Justice of the (Madras) High Court now?" According to Vaigai, "Once you appoint somebody (as Chief Justice of a High Court), the delivery system should not fail... Once you have a Chief Justice from outside, unless there are serious objections from the litigant public or the Bar or some other weighty reason, he cannot be transferred. He should be allowed to complete his term or he should be elevated (to the Supreme Court)."
People for Independent Judiciary, a Chennai-based organisation, had written a letter to retired judge of the Supreme Court V.R. Krishna Iyer, requesting him to lead a delegation to the President of India on the proposed transfer of four Chief Justices. The letter said the "transfers... are not for administrative reasons, but actuated by extraneous considerations and are hence mala fide."
The new Attorney-General of India, Soli Sorabjee, was quoted as emphasising the need for setting up a judicial commission, which could deal with cases of misconduct by the Supreme Court and High Court judges, and recommend their removal, if need be. He said that advocates from all over the country were seeking such a commission, which could be entrusted with appointments and transfers of judges.
SCORES of advocates practising in the Madras High Court meanwhile objected to the BJP Government appointing 33 lawyers, who were either members or supporters of the AIADMK, as Central Government standing counsel in Chennai. In a memorandum to the President of India, the Chief Justice of India and the Prime Minister, they termed these appointments "highly arbitrary, irregular and illegal." When Jayalalitha and her close friend Sasikala Natarajan were facing prosecution by Central agencies such as the Central Bureau of Investigation, the Enforcement Directorate and the Income Tax Department, how could such lawyers be involved in the proceedings in an impartial manner, the advocates asked. They demanded the revocation of the appointment of the lawyers so that judicial process could be upheld.