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A routine matter or a punishment post?

It is time for the Central government to clear the doubts being raised about the collegium’s recommendations

November 15, 2021 12:15 am | Updated 12:44 am IST

The Madras High Court, Chennai

The Madras High Court, Chennai

The Supreme Court collegium’s recommendation to transfer the Chief Justice of the Madras High Court, Sanjib Banerjee , to the Meghalaya High Court, as well as the senior-most judge of the Allahabad High Court, Munishwar Nath Bhandari, to the Madras High Court, has raised eyebrows.

Many questions

Justice Banerjee was appointed as a judge of the Calcutta High Court on June 22, 2006. He was appointed as Chief Justice of the Madras High Court on December 31, 2020, and he assumed office on January 4, 2021 . Without a promotion, he would have to retire from office on November 1, 2023. He has two more years to serve at the Madras High Court.

 

The Calcutta High Court has a sanctioned strength of 72 judges and the Madras High Court has a sanctioned strength of 75 judges. The proposal is to transfer him to the Meghalaya High Court, established in 2013 and with a sanctioned strength of only four judges. It is therefore only fair that some would term the transfer of a judge, who was managing a large High Court for nearly 10 months, to a northeastern State as a punishment unless the collegium provides reasons for its decision.

Article 222 of the Constitution provides for the transfer of a judge (including Chief Justice) from one High Court to any other High Court. In the case of Justice Banerjee, since the proposal came from the Supreme Court collegium, the Central government, which has to advise the President of India, is entitled to ask for relevant material before tendering any advise. If it is not satisfied, the Central government can ask the Supreme Court to reconsider its decision. Recently, the Union Law Minister, Kiren Rijiju, said that the Chief Justice of India (CJI) will “create a new dawn in judiciary”. The CJI in turn said that Mr. Rijiju was “ the only Law Minister or politician in recent times, who recognised our judicial hard work and appreciated us”. Therefore, it may be possible that both the decision-makers have a common intention for the transfer.

Justice Banerjee was appointed as the Chief Justice of a High Court with three years of service left. He was found suitable for that post. How is that within 10 months of his tenure he is being found unsuitable for the same High Court and is being transferred to a far-away State which has just two judges at present?

Another puzzling decision

Justice Bhandari’s transfer is equally puzzling. In its September 16th decision, the collegium recommended the transfer of Justice Bhandari to the Madras High Court . The details of his appointment show that he was initially appointed as a judge of the Rajasthan High Court on July 5, 2007. If he joins the Madras High Court, he will become the senior-most judge since Justice T.S. Sivagnanam was transferred to the Calcutta High Court and the next two judges — M. Duraiswamy and T. Raja — are admittedly junior to him. With his transfer, Justice Bhandari will become the Acting Chief Justice of the Madras High Court.

Even if the consultation process in making Justice Bhandari the Chief Justice of the Madras High Court is delayed because of, say, the State government raising any issues, Justice Bhandari will continue as Acting Chief Justice and will retire on September 12, 2022. Justice Bhandari’s tenure at the Rajasthan High Court was not free from controversy. After being appointed as a judge in that High Court, he was transferred to the Allahabad High Court. The collegium proposed his transfer in 2019 and the reason it provided was that the transfer was in the “interest of better administration of justice”.

Justice Bhandari requested through representations on January 18 and 23, 2019, that his proposed transfer be deferred for the time being for further consideration. The collegium rejected his representation and the note published, it stated: “the Collegium has carefully gone through the aforesaid representations and taken into consideration all relevant factors including his request to defer his proposed transfer for the time being for further consideration in future. On reconsideration, the Collegium is of the considered view that it is not possible to accede to his request”. Justice Bhandari joined the Allahabad High Court on March 15, 2019, and in due course, he became the senior-most judge in that Court.

If the Supreme Court collegium of 2019 thought that Justice Bhandari should leave the Rajasthan High Court in the “administration of justice”, what changed that prompted the collegium of 2021 to transfer him to the Madras High Court with the full knowledge that he will be heading that court? What was once a punishment transfer has now become a rewarding transfer. If a judge is not considered suitable for one High Court, then how he does he become suitable for another High Court? This is the question that is being asked in legal circles.

And does this mean that the decision to transfer Justice Banerjee to the Meghalaya High Court was made to facilitate Justice Bhandari’s elevation as Chief Justice of the Madras High Court? Also, if the decision was taken as early as on September 16, why was it made public only about one and a half months later? This is a question that many are asking.

Normally when such proposals are made, a judge in the Supreme Court who comes from the State in which the transferee judge is holding office is also consulted. With regard to Justice Banerjee’s transfer, there are four judges who are qualified to be called consultee judges. Why was consultation in the case of Justice Banerjee made only with the junior-most judge of the Supreme Court and not the senior judges?

Not a routine matter

Evaluations are not made on the discharge of duties of a judge as there is no reliable basis for making such an analysis. In terms of disposal of matters and writing skills, no one can find fault with the present Chief Justice. If there are other reasons for his transfer, then such a transfer proposal can only be termed as a punishment and not a routine matter. It is time for the Central government to step in and clear these doubts.

Justice K. Chandru is a retired judge of the Madras High Court

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