Forget appointments, it seems, the legal fraternity is now losing confidence in the Supreme Court’s Collegium (SCC) to effect even transfers of sitting judges in a transparent manner.
While protests over transfers have happened in the past too, what makes the lawyers’ protests against the SCC’s purported move to transfer one judge each from the Gujarat High Court (Justice Nikhil S Kariel), and the Telangana High Court (Justice A Abhishek Reddy) significant is that so far there is no official word – which invariably happens via posting of the SCC’s resolutions on the Supreme Court website – about the transfers.
Like appointments to the higher judiciary, which have always been shrouded in mystery, the SCC continues to try to keep even transfers away from the public glare.
The strongly-worded resolution of the Gujarat High Court Advocates’ Association describes Justice Kariel as “one of the finest, honest, upright and unbiased Judge, whose integrity and honesty is being vouched by the entire Bar in one voice”. What then, one wonders, made the Chief Justice DY Chandrachud-led five-judge SCC transfer the judge to Patna?
If there were complaints against these two judges – and another judge whose transfer has purportedly also been recommended – shouldn’t the same be looked into.
While the Supreme Court itself has often said transfer isn’t a punishment, in the case of upright judges, the transfer is anything but. By transferring out good judges, isn’t the SCC depriving their parent high courts of their services? Should the Bar of the Gujarat High Court have the right to be informed why the judge was transferred and why his transfer isn’t a case of “death of independence of judiciary”?
For far too long, the SCC has tried to use transfers to send out a message to errant judges. However, more often than not, while the unscrupulous among judges continue to rule the roost in their parent high courts, the power of transfer has been weaponised to keep upright, no-nonsense judges on a short leash.
To date, for example, nobody knows why the SCC, then headed by then CJI Ranjan Gogoi – the same one who accepted a post-retirement seat in the Rajya Sabha from the Narendra Modi government, transferred out Justice A A Kureshi from the Gujarat High Court “in the interest of better administration of justice” to the Bombay High Court.
By arbitrarily transferring out judges, or, in the alternative, choosing to allow some judges, whose conduct may not be beyond reproach, the SCC is only strengthening the case of those, including the government, that the opaque collegium system needs to be junked.
When he took over as Chief Justice of India, many had thought Justice DY Chandrachud would be the CJI to make the working of the SCC more transparent. Sadly, he started with a misstep.