Author : Pulkit Gopalkrishan Popli, 1st Year student of IIT Kharagpur Law School.
Often the judgments delivered by various courts receive various
responses on the basis of credibility, justice served, equitable grounds etc.
But recently a judgment delivered by Chief Justice of Kerala High Court sparked
a controversy. The reason of the controversy was that Hon'ble Judge Manjula Chellur has been transferred to the Kolkata High Court
where she assumed the charge on 5th of August. The transfer warrant was signed
by the Honorable President on July 21 while the verdict on case was delivered
on July 25. The verdict declared the 2007 eviction-drive in Munnar as illegal.
The question arises, could a judge still deliver judgments after a transfer
warrant was issued?
As per Article 222(1) the President may, after
consultation with the Chief Justice of India, transfer a Judge from one High
Court to any other High Court. According to the Delhi High court rules,
“Every District Judge or Sub-Judge proceeding
on leave or transfer, must, before making over the charge, sign a certificate
that he has written judgments in all cases in which he has heard arguments.
Should an officer be forced to lay down his charge suddenly, he shall,
nevertheless, write the judgments in such cases, and send them for
pronouncement to his successor.[1]”
This article along
with article 217 has been the center of controversies. Article 217 states that
“Every Judge of a High Court shall be
appointed by the President by warrant under his hand and seal after
consultation with the Chief Justice of India, the Governor of the State, and,
in the case of appointment of a Judge other than the chief Justice, the chief
Justice of the High court, and shall hold office, in the case of an additional
or acting Judge, as provided in Article 224, and in any other case, until he
attains the age of sixty two years Provided that-
(a) a Judge may, by writing under his hand
addressed to the President, resign his office;
(b) a Judge may be removed from his office by
the President in the manner provided in clause ( 4 ) of Article 124 for the
removal of a Judge of the Supreme Court;
(c) the office of a Judge shall be vacated by
his being appointed by the President to be a Judge of the Supreme Court or by
his being transferred by the President to any other High Court within the
territory of India”
In the Landmark
Judgment of, S.P.Gupta
v. Union of India case[2] which is the last judgment of
judge’s case trilogy, could
be used to answer various queries regarding the transfer of judges.
In
paragraph-900 at page 543 it was discussed whether how court views the transfer
of judges? It was said that it is a transaction that takes place in two parts,
the first is termination from the original high court and the second is the
simultaneous appointment in the other high court.
This
view is supported by the circumstance that the power of transfer is vested in
the President. It is significant in this connection that the President is also
the appointing authority in the case of appointment made under Clause (1) of
Article 217 and is also vested with the power of removal in cases falling under
Article 218 read with Clause (4) of Article 124. Therefore, it was necessary
that the authority who has been otherwise vested with the power to appoint a
Judge and to terminate his appointment should also be the authority to transfer
him. It may be added that inasmuch as the transfer constitutes an appointment
of the Judge to the other High Court. Article 219 comes into play and,
therefore, the transferred Judge must, before he enters upon his office in that
High Court, make or subscribe an oath or affirmation according to the
prescribed Form.
Now the question
that arises that the article stated that the office of the judge will be
vacated by him while being transferred by the President to other high courts.
So can we say that the judge that has been issued the transfer warrant can no
longer work as a judge until he has joined the new high court? One of such
questions arose in a case M.K. Sasidharan, Advocate Supreme
Court and President v. The Hon'ble Chief Justice of India, Supreme
Court of India and Ors.[3]The Petitioner, an advocate
practicing in the Supreme Court filed the Original Petition praying for the
issue of a writ of Quo Warranto
calling upon the 5th Respondent, a Judge of this High Court who has been
transferred to the High Court of Gujarat, under what authority he has been
discharging the functions as an Additional Judge of the High Court of Kerala.
The 5th Respondent was appointed as an Additional Judge of the High Court of
Kerala under Article 217 of the Constitution of India. He had sworn as a Judge
of this Court on 11th April 1996. By virtue of powers vested in the President
of India under Article 222 of the Constitution, the 5th Respondent was
transferred to the High Court of Gujarat. He was given time till 9th May 1996
to assume charge as Judge of the Gujarat High Court. Later the President of
India in consultation with the Chief Justice of India had granted extension of
time from time to time up to 22nd July 1996. In the meanwhile the 5th
Respondent was functioning as a Judge of this Court, hearing and disposing of
cases. It was contended by the Petitioner that on his transfer to the Gujarat
High Court, the 5th Respondent was ceased to be a Judge of this High Court and
that he has no right or authority to discharge the duties of a Judge of this
Court
In the
judgement to this case, the court also said in paragraph 18:
“The prayer of the petitioner to issue a writ
of quo warranto is not maintainable as the 5th respondent was appointed as an
Additional Judge of the High Court of Kerala by the President of India in
consultation with the Chief Justice of India and the warrant of appointment
still holds good and he had been given time to assume office till 22-7-1996. He
continues to be a Judge of this Court for all practical purposes.”
Thus from
this case we can easily conclude that a judge continues to remain judge until
she/he gets relieved from the previous court, not when she gets the transfer
warrant but in order to maintain the spirit of the constitution it is preferred
that they vacate it as soon as possible. So applying same standards in the case
of Judge Manjula Chellur, it was duteous of her to deliver the judgment which
and her authority of deliverance is not dubitable under law and complies with
the spirit of constitution.
Disclaimer: This blog or any post thereof
is not to be considered to be in any way associated with the official stand of
IIT kharagpur or RGSOIPL on the issues being discussed in the said post. The
opinions on the blog are the authors own and should not be considered as legal
advice.
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