By Inder Jit
(Released on Jan 27, 1981)
Another Republic Day has rolled by. The nation has gone through the ritual of annual celebrations at the Centre and in the States — receptions and udghatans. The President has spoken and so also other leaders. The country has been alerted against external dangers. Yet, the Republic and its basic structure, thoughtfully bequeathed to the country by Nehru, Patel and other Founding Fathers, faces today in unprecedented threat internally. Each succeeding week has seen new assaults on the system in the name of the country and of meeting new challenges. Not very long ago, a question mark was suddenly raised over the parliamentary form of Government. The people were asked to debate whether theyshould switch over to the Presidential system. Now, the judiciary is under fresh attack as reflected in the Centre’s sudden decision to transfer two High Court Chief Justices to other States. The transfers, which continue to puzzle and raise some vital issues, have already led to the resignation of Mr Justice M.M. Ismail, Chief Justice of the Madras High Court — and writ petitions.
The Union Government asserts that the transfers have been carried out in accordance with the Constitution which states: “The President may, after consultation with the Chief Justice of India, transfer a judge from one High Court to any other High Court.” The Government, it is pointed out, had transferred Mr. Justice Ismail as Chief Justice of the Kerala High Court and Mr. K.B.N. Singh, Chief Justice of the Patna High Court to the Madras High Court in consultation with the Chief Justice of India, Mr. Y.V. Chandrachud. Official sources have even claimed that the Centre had secured Mr. Chandrachud’s “concurrence”. But doubts persist on three grounds. First, the Chief Justice of India spoke out against the idea of judges’ transfers at Jaipur barely a few hours before the late night announcement of the Government’s decision in New Delhi. Second, Mr. Chandrachud has chosen to maintain stoic silence in the matter and has neither denied nor confirmed the Centre’s claim. Third, the increasing lack of credibility in the Government’s word.
Considerable misgiving has also been caused by the transfer as Mr. Justice Ismail is a remarkable person from all accounts and well known in New Delhi’s judicial circles. Prior to becoming the Chief Justice of the Madras High Court in November 1979, Mr. Ismail is said to have declined an offer to become a judge of the Supreme Court as he wanted to stay on in Madras.He was appointed an Additional Judge of the Delhi High Court by Mr. Justice Hidayatullah, then Chief Justice of India, in February 1967 and was made a Permanent Judge in May 1967. But he sought transfer to the Madras High Court in November the same year because of family circumstances and agreed not to claim his seniority vis-à-vis the other judges. Had Mr. Ismail stayed on in the Union Capital, he would have become Chief Justice of Delhi High Court in 1978. (Mr. Justice Ismail’s former colleagues in Delhi speak highly of his professional competence and scholarly attainment in Muslim and Hindu scriptures. I am told that he has translated the Quran and the Ramayana into Tamil.)
There is no gainsaying the fact that the Government can transfer judges under the Constitution. Further, the Supreme Court has also held that the Government has the power to transfer judges and that it need not seek their consent in the matter. But it is expected that the exercise of such power must not be either arbitrary or mala fide. Unfortunately, the Government has done little to assure all concerned that the transfers have been made in the best public interest. In fact, matters have been made worse bythe Law Minister, Mr. Shiv Shankar, and all that he has said and done during the past manymonths: his repeated talk of pushing ahead with the transfers of High Court judges, especially of the Chief Justices, as a matter of policy and his refusal to confirm Acting Chief Justices in several States for months. This has left the legal world and independent observers with one dominant impression: that he is determined to demoralize the judiciary and make the executive all powerful.
Curiously, the relevant and realistic views of the Law Commission in its 80th report, prepared mainly by Mr. Justice H.R. Khanna and designed to ensure the independence and integrity of the judiciary, have been twisted. An erroneous impression has been created as though what Mr. Shiv Shankar has been seeking to do on the question of the transfer of High Court judges and the appointment of one-third of the Judges from outside the State had the support of the Commission. This is not so as few MPs, even those who are members of Parliament’s Consultative Committee for the Law Ministry, have cared to note. The Law Commission, to set the record straight, clearly stated: “We would like to emphasise that we are normally against the transfer of judges of the High Court from one court to the other as such power is liable to be abused and impinges upon the independence of thejudges. Normally, a judge should continue in the Court to which he is appointed, except where he is appointed Chief Justice of some other High Court”.
The Commission, nevertheless, recognized that situations could arise in some High Courts, as have reportedly arisen in recent months leading to complaints about corruption, nepotism, casteism and much else. (The Chief Justice of India recently criticized the growing trend in which the sons, sons-in-laws and other near relations of High Court Judges are nowadays practicing in their courts.) It, therefore, said: “There are occasions — we hope rare — when the image and good name of the judiciary makes it incumbent that a judge posted in a High Court be transferred to some other High Court. Although byand large the judges of the High Court have evoked great respect for maintaining high standards, complaints have sometimes been heard against one or other individual judge. The facts of the case may not be such as might warrant resort to the extreme remedy of impeachment; still the requirements of the situation may call for the transfer of the judges concerned. The transfer of a judge in such an event should not be looked upon as something taboo.” Significantly, however, it still underlined the need “to ensure that the power of transfer is not abused and the transfers be not motivated by extraneous considerations.”
The Commission did not stop at that and, to prevent “any abuse of the power of transfer”, added: “We recommend that no judge should be transferred without his consent from one High Court to the other unless a panel consisting of the Chief Justice of India and his four senior-most colleagues finds sufficient cause for such a course. In case of difference between the members of the panel, the view of the majority should be taken to be at the view of the panel.” Further, the Commission suggested that the Constitution be amended ——”despite our general reluctance on this score” – since it would be “desirable to have a consultative panel with a view to preventing the sway of extraneous considerations in the matter of super-session or transfer.” This objective “could be substantially achieved if, in case of transfer and also in case of ignoring the claim of the senior-most judge in the matter of appointment of the Chief Justice of the High Court, the mater is scrutinized by a high level body of persons who are known for their integrity and have also judicial background. Avoidance of controversy is also necessary to preserve and keep up the image of the High Courts.”
Interestingly, the idea of having in each High Court about one-third of the judges from outside is not new. It was first recommended by the States Reorganisation Commission way back in 1956 and was followed up by the Law Commission, presided over by Mr. M.C. Setalved, which observed in its 14th report: “The recent creation of various zones in the country and the efforts to treat the States forming part of these zones as one unit for various purposes would, we hope, lead to the States forming part of each zone to be recruiting ground for appointments to the High Court from the members of the bar of those States.” (Mark you, appointment within zones, not from Patna to Madras, provoking the Tamil Nadu Chief Minister, Mr. M.G. Ramachandran, to protest that Mr. Justice Singh does not know Tamil!) The Law Commission, presided over by Mr. Justice Khanna, has agreed in its 80th report that “there should be a convention according to which one-third of judges in each High Court should be from another States.” At the same time, however, it has made it clear that “this would normally have to be done through initial appointments and not by transfer.” The process, it has added, would have to be “gradual” and it would take “some years before the proportion is reached.”
Mr. Chandrachud, for his part, deserves a hand for taking a firm stand against the Law Minister’s repeated efforts to get him to agree to the transfer of Chief Justices and other judges of the High Court as a matter of policy. He has told the Government that he is willing to consider transfers on an individual basis and has also taken fellow judges into confidence about his stand. In fact, in the past few months, the Chief Justice has even reportedly shared with his colleagues his unhappiness about the conduct of four or five Chief Justices and the complaints received against them from the Bar Councils. But his stand byitself is not enough in a situation in which the judiciary is under attack and, according to a former Chief Justice of India, judges are being “assailed from all sides” and many members of the Bar are willing to play politics and even gang up. Transfers, as the Supreme Court has already held, may require to be made in “public interest” —— even without consent. But such transfers must also appear to be made in public interest.
The whole issue of transfer of High Court judges and appointment of new judges and Chief Justices needs to be considered by Parliament together with the weighty 80th report of the Law Commission which, alas, has been gathering dust. This is as much necessary to cry a halt to the present unseemly controversy on the subject as to refurbish the image of the judiciary, its integrity and impartiality. Mr. Shiv Shankar has been drawing strength for his ideas and plans from the majority opinion of the Informal Consultative Committee of Parliament attached to his Ministry. These Informal Committees are no substitute for Parliamentary Committees and even less for Parliament itself. Indeed, Mr. M.N. Kaul, acknowledged authority on Parliament, has even gone on record to state: “No more useless political institutions of an informal character have I seen than these Informal Committees.” The earlier the powers that be face up to the facts, the better for the country. Either we stand for the independence of the judiciary or we don’t. There is no half-way house in regard to an institution which is basic to the health and vitality of our Republic. — INFA