ON September 7, the Chief Justice of the Madras High Court, V.K. Tahilramani, resigned in protest against the Supreme Court collegium’s refusal to reconsider its decision to transfer her as the Chief Justice of the Meghalaya High Court.
In the normal course, the transfer of a Chief Justice of one High Court as the Chief Justice of another should not lead to a controversy. In this case, a controversy became inevitable because it was seen as a “punitive” transfer.
The Madras High Court is the fourth largest high court (after the Allahabad, Bombay and Punjab and Haryana High Courts) with a sanctioned strength of 75 judges, of whom 56 are permanent and 19 are additional. The Meghalaya High Court is one of the few small High Courts, with a sanctioned strength of four judges—three permanent judges and one additional judge. Although all High Courts are equal in terms of status and importance, the transfer of Justice Tahilramani, according to former Supreme Court judge Justice Madan B. Lokur, lacked grace and is ex facie suggestive of humiliation. He said she did well to resign.
The collegium’s move against Justice Tahilramani and her subsequent resignation provoked strikes by lawyers in Chennai (see separate story on page 38) and in her hometown, Latur in Maharashtra.
Justice Tahilramani is one of the only two women Chief Justices at present. She was appointed Chief Justice of the Madras High Court on August 8, 2018. Before that she was the acting Chief Justice of the Bombay High Court between 2015 and 2017 in three stints. On May 7, 2017, she upheld the conviction and life imprisonment of 11 accused in the post-Godhra carnage in the Bilkis Bano gang-rape case, and set aside the acquittal of seven accused, including policemen and doctors in that case. The Supreme Court transferred the case to Maharashtra from Gujarat, fearing that trial in Gujarat would not be free and fair.
It may be unfair to Justice Tahilramani to speculate on the probable reasons—as a section of the media has done—as to why the collegium decided to transfer her in the absence of her own defence, but it seems that the collegium let such speculations thrive to hide its acquiescence to the Centre’s unstated insistence that she be demoted for her judgment in the Bilkis Bano case.
Memorandum of Procedure
Article 222 of the Constitution makes provision for the transfer of a judge (including the Chief Justice) from one High Court to another. The initiation of the proposal for the transfer of a judge should be made by the Chief Justice of India (CJI) whose opinion in this regard is determinative. Consent of a judge for his first or subsequent transfer, according to the Memorandum of Procedure (MoP), would not be required. All transfers, the memorandum makes it clear, are to be made in the public interest, that is, for promoting better administration of justice throughout the country.
But the phrase “better administration of justice” is a cliche which the memorandum does not elaborate on. The only safeguard it envisages is that the views on the proposed transfer of a judge or a Chief Justice of a High Court should be expressed in writing and should be considered by the CJI and the four senior-most judges of the Supreme Court, who constitute the collegium. “The personal factors relating to the concerned judge, including the Chief Justice, and his (or her) response to the proposal, including his preference of places, should invariably be taken into account by the CJI and the first four puisne judges of the Supreme Court before arriving at a conclusion on the proposal,” the memorandum states.
In the case of the transfer of the Chief Justice of a High Court, there is one additional safeguard to be followed by the CJI in the formation of his opinion. The CJI should take into account the views of one or more Supreme Court judges who are in a position to offer his/their views, which would assist in the process of deciding whether or not a proposed transfer should take place, the memorandum adds.
In the case of Justice Tahilramani, the collegium, comprising the CJI, Justice S.A. Bobde, Justice N.V. Ramana, Justice Arun Mishra and Justice R.F. Nariman, on August 28 resolved to recommend that she be transferred, in the interest of better administration of justice, to the Meghalaya High Court. By another resolution on the same day, the collegium resolved that Justice A.K. Mittal, Chief Justice of the Meghalaya High Court (with the Punjab and Haryana High Court as his parent High Court) be transferred “in the interest of better administration of justice” to the Madras High Court.
Lack of transparency
The resolutions, uploaded on the Supreme Court’s website, are silent on whether the CJI took into account the views of one or more Supreme Court judges who would have been in a position to offer their views to assist in the process of deciding whether or not the proposed transfers should take place. Although the Supreme Court initiated the process of uploading the collegium’s resolutions on its website to further transparency, its silence on how the administration of justice is served by these transfers or whether the memorandum’s insistence on consultation with Supreme Court judges who are in a position to offer their views was complied with, would seem to defeat that very objective.
Similar lack of transparency was evident when the collegium claimed that it had “carefully gone through” the representation of Justice Tahilramani, for “reasons stated therein” to reconsider the proposal to transfer her to the Meghalaya High Court, along with “all relevant factors”. “On reconsideration, the collegium is of the considered view that it is not possible to accede to her request,” it concluded on September 3, and reiterated its recommendation to transfer Justice Tahilramani to the Meghalaya High Court.
The September 3 resolution thus does not throw light on the reasons cited by Justice Tahilramani in favour of reconsidering the proposal to transfer her to the Meghalaya High Court and on “all relevant factors”, which the collegium claims to have considered before rejecting her request.
Justice Lokur’s critique
In an article on the subject in TheEconomic Times , Justice Lokur stated that the recent recommendations of the collegium “indicate an absence of consistency bordering on arbitrariness”. Deploring the tendency to not prioritise merit, he said “there are no fixed criteria for selection of judges to the Supreme Court, and the requirements keep changing. There are considerations of seniority, adequate representation of High Courts, gender, religion, caste and of course merit sometimes finds a place as well.”
Justice Lokur also commented harshly on the informal introduction of a new criterion for the appointment of judges to the Supreme Court: Who will be the CJI, for how long, and who should be blocked.
As the CJI is appointed according to seniority as determined by the date of his/her joining the Supreme Court, the collegium tends to ignore the all-India seniority of High Court judges in the consideration zone by recommending junior judges, in order to decide the line of succession of the CJI for the next seven or eight years. (The all-India seniority of High Court judges is determined in terms of their dates of joining their parent High Courts).
Is it possible to get rid of this chancellor’s foot syndrome? Justice Lokur asked this question and referred to two senior judges of the Supreme Court objecting to the collegium overlooking seniority while recommending appointments to the Supreme Court.
(Justices Sanjay Kishan Kaul and R. Banumathi, two senior judges, wrote to the CJI expressing their concerns over the practice of ignoring seniority. Justice Banumathi objected to the decision recommending the Himachal Pradesh High Court Chief Justice, Ramasubramanian, to the Supreme Court, overlooking the Manipur High Court Chief Justice, Ramalingam Sudhakar, who is senior to him. Justice Kaul expressed similar concerns over elevating the Rajasthan High Court Chief Justice, Shripati Ravindra Bhat, to the Supreme Court, ignoring the claims of judges who are senior to him.)
John Selden, a 17th century English jurist, had a dig at the then prevailing system of dispensing justice by the King through the advice of his Chancellor, an ecclesiastic, who acted as the keeper of the King’s conscience thus: “Equity varied with the length of the Chancellor’s foot.” When petitions were referred directly to the Chancellor, who dealt with cases on a flexible basis, he was more concerned with the fair result than with rigid principles of law. With the establishment of the High Court of Justice to administer both common law and equity, the Court of Chancery was eventually abolished in England.
Justice Lokur’s use of the phrase “chancellor’s foot syndrome” to describe the collegium’s favouritism by elevating juniors to the Supreme Court is significant. Before his retirement, he was a member of the collegium and knows about its functioning. Also, he was on the Constitution Bench that declared the Narendra Modi government’s National Judicial Appointments Commission unconstitutional, and also sought the reform of the collegium in 2015. Thanks to the Modi government’s non-cooperation in revising the memorandum of procedure, the reform of the collegium, as envisaged by the bench, is incomplete. Justice Lokur was one of the four judges who addressed the historic press conference against the then CJI, Dipak Misra, on January 12, 2018, for his arbitrary allocation of cases.
Invoking the song Ballad of a Thin Man by the Nobel laureate and singer-songwriter Bob Dylan, Justice Lokur suggested that there was more to the collegium’s decision than meets the eye. Echoing Dylan’s famous line, he asked: “Something is happening here but you don’t know what it is. Do you, Mr Jones?” Justice Lokur answered: “Well, if I were Mr Jones my answer would be in the negative.”
Justice Lokur borrowed Dylan’s line again to question the CJI’s move to deal with the non-appointment of Justice Akil Kureshi, a judge of the Bombay High Court, as the Chief Justice of Madhya Pradesh High Court, despite the collegium recommending his name on May 10. The Gujarat High Court Advocates Association has challenged in the Supreme Court the “deliberate inaction” of the Centre in notifying Justice Kureshi’s appointment.
Referring obliquely to the transfer of Justice P.V. Sanjay Kumar of the Telangana High Court to the Punjab and Haryana High Court on August 28, Justice Lokur wrote: “A senior and eminently competent judge from one High Court has been transferred out supposedly for the better administration of justice, giving an impression that his presence in the High Court was not conducive to the administration of justice. Does this not make the transfer punitive?”
Justice Sanjay Kumar is part of the collegium of the Telangana High Court, whereas in the Punjab and Haryana High Court he will not be part of the collegium as 11 judges there are senior to him. This led to misgivings that he was demoted. The Telangana High Court Advocates Association went on a brief strike to protest against the move. The Bar Council of Telangana condemned the transfer.
“Transparency does not end with putting up resolutions of the collegium on the website, or not putting them up or taking them down—it begins from here,” Justice Lokur added.
In an uncharacteristic manner, the collegium, through the Supreme Court’s Secretary General, Sanjeev S. Kalgaonkar, responded to Justice Lokur’s criticism thus:
“As directed, it is stated that each of the recommendations for transfer was made for cogent reasons after complying with the required procedure in the interest of better administration of justice. Though it would not be in the interest of the institution to disclose the reasons for transfer, if found necessary, the Collegium will have no hesitation in disclosing the same. Further, each of the recommendations was made after full and complete deliberations and the same were unanimously agreed upon by the Collegium.”
In its official response, the collegium appeared to contradict itself. If the non-disclosure of the reasons for transfer is warranted in the interest of the institution, it is not clear how the collegium can disclose it if found necessary.
The court’s clarification gave rise to further queries from legal observers. Are there any guidelines to suggest when the disclosure of reasons will be in the interest of the institution? Can the collegium enlighten critics as to when it will be “necessary” to disclose such reasons and when it will not be? Is the collegium using its “readiness to disclose reasons if necessary” as a threat to silence its critics, as it is implied that disclosure is more likely to embarrass her? By seeking to respond to the criticism of the collegium’s role in appointments and transfers, the Supreme Court has sought to underline the opaqueness of the system.
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