The transfer of Chief Justice Vijaya K. Tahilramani from the Madras High Court to Meghalaya is shocking and disconcerting. She had presided over a court of 75 judges and administered a subordinate judiciary in 32 districts in addition to the Union Territory of Puducherry. In contrast, the Meghalaya High Court has only three judges and a subordinate judiciary in just seven districts.
The transfer of a Chief Justice from one of the bigger High Courts to one of the smallest High Courts in the country is an obvious case of downgrading and amounts to public humiliation of the highest judicial officer in a State. Her response to this humiliation has been graceful but resolute — resignation.
Earlier, in 2017, Justice Jayant Patel, who was slated to be appointed Chief Justice of the Karnataka High Court, had resigned when he was transferred to the Allahabad High Court. Significantly, he was a member of the Bench of the Gujarat High Court that had ordered a CBI probe in the Ishrat Jahan encounter case.
A vulnerable high office?
Is the constitutionally protected office of a High Court judge so vulnerable? If yes, something is rotten in the State of Denmark!
The Supreme Court derives its power to select, appoint and transfer judges from its verdicts in Three Judges Cases. After a spate of “punishment transfers” of upright judges by the Central government during the Emergency in 1975, the judiciary arrogated to itself the power in order to preserve judicial independence. Thus, the collegium system consisting of the Chief Justice of India and four senior-most judges of the Supreme Court was put in place.
However, the apex court’s power to transfer is not unfettered and absolute and can only be carried out in public interest for better administration of justice. The Supreme Court can order a judge’s transfer to improve the functioning of either of the High Courts or if there are close relatives of the judge practising in the same Court. The apex court can also do so if the judge has litigation or property interest in the State or has become controversial and so her continuance in the same High Court is not conducive.
In the case of Justice Tahilramani, though the collegium’s recommendation stated that the transfer was made “in the interests of better administration of justice,” the lack of public interest is glaring. The judge has conducted herself with dignity befitting the high office, has not been mired in any controversy, and does not have any close relatives practising in Tamil Nadu.
In the past, the functioning of the collegium has attracted much criticism, largely due to aberrations in certain selections and transfers. Retired Supreme Court judge, Justice Ruma Pal, had in 2011 called the functioning of the body a “mystique” shrouded in “secrecy”. Later, the government’s attempt to have a National Judicial Appointments Commission (NJAC) was rejected by the Supreme Court in 2015 and the system of collegium has continued with its opaqueness and inconsistencies.
Ironically, Justice A.K. Mittal, who has been recommended to replace Justice Tahilramani, was superseded in 2018 when the collegium found his junior Justice Surya Kant to be “more suitable” for the position of Himachal Pradesh High Court Chief Justice. He was later appointed in May 2019 to head one of the smallest High Courts. Hence, the collegium’s recommendation to have him replace Justice Tahilramani, who has had three stints as acting Chief Justice of the Bombay High Court, defies logic. The transfer appears arbitrary, coming at a time when Justice S. Manikumar, a judge junior to her, has been recommended for appointment as Chief Justice of the Kerala High Court, which has a larger strength than its counterpart in Meghalaya.
In recent times, despite its judicial pronouncements in cases such as the entry of women into Sabarimala and triple talaq, the Supreme Court has not exactly covered itself with glory in cases of women on its administrative side. The transfer of the highest-ranked woman High Court judge in the country will only dent the credibility of the collegium further.
Transparency needed
The most pertinent question here is whether the transfer serves the interests of administration of justice for the people of Tamil Nadu. The Supreme Court cannot function as a sentinel of justice unless it puts its own house in order. Its functions, both judicial and administrative, have to be transparent and accountable. Courts have in the past held illegal executive orders passed without reason. The same should apply to the administrative actions of the apex court’s collegium.
Due to the puzzling facts relating to Justice Tahilramani’s transfer, rumours are rife on social media and in court corridors. The media has reported that the transfer is a reaction to her judgment in the Bilkis Bano case that concerned the Gujarat riots of 2002. It is also speculated by some that personal prejudices of some Supreme Court judges resulted in the transfer. One would like to believe that these rumours are false.
Here, Justice Ruma Pal’s revelations in 2011 that consensus in the collegium was often arrived at by “trade-offs” with “disastrous consequences” and that “sycophancy” and “lobbying” had coloured the appointments are ominous. Such actions shake the faith of the public in the judges’ functioning.
Checking the collegium
In 1977, Justice V.R. Krishna Iyer warned in the S.H. Sheth case that “public power is a lofty trust to be operated and, if private impulses or public aberrations play upon the exercise, the Court shall quash the lawless fiat.” The collegium is not a creation of the Constitution, but of the court itself. Yet, when the collegium’s decisions are called into question for having been influenced by extraneous considerations, there is no institutional check.
In the general atmosphere prevalent now where even constitutional functionaries are kowtowing to the powers that be, Justice Tahilramani, by resigning, stands tall as a pillar of courage. One is reminded of Justice H.R. Khanna, who had braved intense political pressure to dissent in the ADM Jabalpur case ( Habeas Corpus case) during the Emergency and chose to resign when faced with supersession.
The resignation of a judge with 17 years of judicial service, just a year before her retirement, has to raise alarm bells about the health of the system. Judges of High Courts enjoy constitutional tenure and protection and cannot be subjected to public shame for undisclosed reasons. Any arbitrary transfer by the Supreme Court collegium reduces the High Court judges to a subordinate status. Further, the collegium system, by its opacity, has failed to build a fearless and strong judiciary and serve the public interest. Quis Custodiet Ipsos Custodes (Who will guard the guards themselves)?
R. Vaigai, Anna Mathew and S. Devika are advocates at the Madras High Court
