Targeting judges

The transfer and subsequent resignation of Justice Jayant Patel, whose handling of the Ishrat Jahan encounter case did not go down well with the powers that be, exposes the malice in the collegium system.

Chief Justice of India Justice Dipak Misra.

IT requires a controversy to usher in significant reforms. The Supreme Court vindicated this aphorism on October 6 when it decided, for the first time after the collegium came into existence in 1993, to make the reasons for its decisions public on its website.

The immediate provocation for this reform was the controversy that erupted following the collegium’s decision to transfer Justice Jayant Manganlal Patel of the Karnataka High Court to the Allahabad High Court, leading to his resignation. Lawyers at the Gujarat High Court, from where Justice Patel was first transferred to the Karnataka High Court in 2016, and Karnataka struck work for a day in protest against the collegium’s decision. Besides, the protesting lawyers were planning legal action by way of filing writ petitions in the Supreme Court. Senior advocates of the Supreme Court questioned the collegium’s decision in public. These multiple pressures apparently forced the hands of the collegium, some of whose members did not want to be on the wrong side of history.

Transfer of a judge from one High Court to another on the recommendation of the Supreme Court’s collegium, ostensibly to facilitate better administration, is nothing new. But the proposed transfer of Justice Patel brought the collegium’s functioning under scrutiny, amidst renewed calls for an immediate reform of the system.

Justice Patel resigned on September 25, making his displeasure public. The President subsequently accepted his resignation. Indeed, the recommendation to transfer him was only a proposal, as it was not submitted to the government.

The collegium, comprising the Chief Justice of India (CJI) Dipak Misra, and the four senior-most judges, namely, Justices J. Chelameswar, Ranjan Gogoi, Madan B. Lokur and Kurian Joseph, first discussed the possibility of transferring Justice Patel to the Bombay High Court but later decided to recommend his transfer to the Allahabad High Court. On September 22, Justice Dipak Misra elicited Justice Patel’s response to the collegium’s proposal over phone, triggering Justice Patel’s resignation.

Justice Patel was to retire on August 3, 2018, on reaching the superannuation age of 62. He was the senior-most judge after the Chief Justice of the Karnataka High Court. He was transferred from the Gujarat High Court, where he was serving as Acting Chief Justice, to the Karnataka High Court on February 13, 2016.

As per the existing Memorandum of Procedure (MoP) of appointments of High Court judges, a puisne judge in a High Court who has one year or less to retire may be considered for appointment as the Chief Justice in his own High Court if a vacancy occurs when his turn for being considered for elevation as Chief Justice arrives. With the Chief Justice of Karnataka High Court, Justice S.K. Mukherjee, reaching his superannuation on October 9, Justice Jayant Patel was eligible for elevation as the next Chief Justice.

Therefore, it was inexplicable why he was not considered for the post of the Chief Justice of the Karnataka High Court as per the MoP. Instead, the collegium first considered a transfer to the Bombay High Court, where he would have been fourth in seniority with no opportunity to be elevated as Chief Justice before his retirement. When this fact dawned on the collegium, it decided to transfer him to the Allahabad High Court, where he would have been second in seniority but still unable to make it as the Chief Justice before his retirement as the present Chief Justice, Justice D.B. Bhosale, will retire only on October 23 next year, well after Justice Patel would have retired had he not resigned. Therefore, it made sense for Justice Patel to quit rather than accept transfer to a different High Court for the purpose of completing his remaining 10 months in office.

As per the MoP, the initiation of a proposal for the transfer of a judge should be made by the CJI, whose opinion in this regard is determinative. Consent of a judge for his first or subsequent transfer is not required; all transfers are to be made in the public interest, that is, to promote better administration of justice throughout the country.

The MoP has safeguards against an arbitrary exercise of this discretion by the CJI. The views on the proposed transfer of a judge should be expressed in writing and should be considered by the CJI and the four senior-most judges of the Supreme Court after taking into account the personal factors relating to the judge concerned and his response, including his preference of the places where he would like to be transferred.

Another safeguard is that the CJI is expected to take into account the views of the Chief Justice of the High Court from which a judge is to be transferred and the views of the Chief Justice of the High Court to which the transfer is to be effected. The CJI should also take into account the views of one or more Supreme Court judges who are in a position to offer their views, which would assist in the process of deciding whether or not a proposed transfer should take place.

It is not clear whether the decision of the collegium to recommend Justice Patel’s transfer to the Allahabad High Court was taken after considering all these requirements. The Supreme Court later clarified that the decision was taken “unanimously” by the collegium, after considering all the inputs that it had received. But why the collegium did not consider Justice Patel for elevation as the Chief Justice of Karnataka High Court went unanswered.

Obvious reasons In the public’s perception, however, there were obvious reasons for Justice Patel’s non-elevation as Chief Justice. On December 1, 2011, Justice Patel, as a judge of the Gujarat High Court, transferred the investigation of the Ishrat Jahan fake encounter case from the Gujarat Police to the Central Bureau of Investigation (CBI). Justice Patel held that the Gujarat Police could not be trusted to conduct a fair probe in the case. He found a CBI probe preferable to an investigation by the Special Investigation Team (SIT), which too held that the encounter was a fake one.

Ishrat Jahan, a 19-year-old college girl in Mumbai, was killed along with three others in a fake encounter by the Ahmedabad Crime Branch in June 2004. Justice Patel described the case as an “exceptional one which has national ramifications”. The Gujarat Police alleged that Ishrat Jahan and the other three were Lashkar-e-Taiba (LeT) terrorists who were on a mission to kill Narendra Modi, the then Chief Minister of Gujarat and the current Prime Minister. In a subsequent probe, the CBI too concluded that the encounter was a fake one.

Although Justice Patel himself did not answer the question posed by reporters whether his transfer and the denial of the post of Chief Justice could be linked to his order in the Ishrat Jahan case, to many observers it is not a coincidence that the Narendra Modi government has been vindictive against those who ensured justice was done to the victims of the 2002 Gujarat carnage or the subsequent instances of abuse of power by the Gujarat Police.

Similar instances In 2014, senior advocate Gopal Subramanium was denied a judgeship of the Supreme Court by the government even after the collegium had recommended his name. The collegium could have reiterated its recommendation, making it binding on the government. But it did not do so on the grounds that Subramanium himself did not favour it following reports that the government had reservations about the collegium’s recommendations. Subramanium, as the amicus curiae during the United Progressive Alliance (UPA) regime, had persuaded the Supreme Court to entrust the probe into the Sohrabuddin Sheikh fake encounter case to the CBI.

The Modi government, apparently, “returned the favour” by denying the judgeship to Subramanium.

Last year, Justice Abhay Mahadeo Thipsay of the Bombay High Court accepted a transfer to the Allahabad High Court although he had less than one year to retire and had twice expressed his reluctance to accept it to the collegium. It was widely believed that Justice Thipsay paid the price for imposing life sentences on nine of the 21 accused in the Best Bakery riot case during the 2002 Gujarat pogrom when he decided the case as a judge of the Mumbai Sessions Court. The case was transferred out of Gujarat by the Supreme Court in 2006.

Justice Rajiv Shakdher was transferred from the Delhi High Court to the Madras High Court as a “punitive” measure for his judgment in the Priya Pillai case. He had set aside the Central government’s unjustified restrictions on her right to travel abroad in order to prevent her from airing her views to a group of British parliamentarians on the alleged violations of human rights of forest dwellers in Madhya Pradesh. Justice Shakdher had contemplated resignation before accepting the transfer. His transfer too, like Justice Patel’s transfer, elicited wide criticism, showing the collegium in a poor light. Curiously, the present collegium has reportedly recommended Justice Shakdher’s transfer back to the Delhi High Court.

Seen in this context, Justice Patel’s transfer and his subsequent resignation infuriated the community of lawyers. The Gujarat High Court Advocates Association wrote to the Registrar Generals of the Supreme Court, the Allahabad High Court and the Karnataka High Court seeking notes of recommendation (with reasons if any) with regard to Justice Patel’s transfer. The association has made public its intention to legally challenge Justice Patel’s transfer.

The Bar Council of India (BCI) and the Supreme Court Bar Association (SCBA) have both expressed dismay over the transfer, which, they said, smacked of lack of transparency. But the SCBA office-bearers and the BCI disapprove of public criticism of the CJI and the collegium in the best interests of the institution. Both were critical of senior advocate Dushyant Dave for attributing motives to the CJI and for criticising the decision of the collegium during a discussion on a television channel. The BCI has issued a notice to Dave to explain his conduct. The executive committee of the SCBA, however, has declared its support to Dave and has sought greater transparency in the collegium’s functioning.

On October 6, the Supreme Court’s website gave details about the merits of three candidates being recommended for appointment as judges in the Kerala High Court and six in the Madras High Court.

Although the Supreme Court’s website is silent on the proposal to transfer Justice Patel as it did not materialise because of his resignation, it has had a positive impact on the collegium’s functioning.