Transfer of a Judge

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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[1]http://delhihighcourt.nic.in/writereaddata/upload/CourtRules/CourtRuleFile_AF9J1IE4.PDF

[2](AIR 1982 SC 149)

[3]AIR1997Ker35

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The fall of Collegium - Should we be concerned?

Introduction

The 64th Report of the Parliamentary Standing Committee on the Judicial Appointments Commission Bill, 2013 seeks to set up a six member body under the Chairmanship of Chief Justice of India for the purpose of recommending names of individuals to the post of Judges of Supreme Court and the High Courts, to the President of India. By replacing the Supreme Court’s collegium system (Chief Justice and four senior most judges), the Judicial Appointments Commission (JAC) seeks to bring back the equal and active participation of both the Executive and the Judiciary in collaborative and participatory manner.

Approximately 275 posts of judges in various High Courts are lying vacant. The collegium system is ridden with inherent deficiencies which the present Bill seeks to cure such as opaqueness, lack of transparency, biasness and prejudice and minimum accountability.¹ The issue before us is that whether the Bill compromises, in any way, the independence of Judiciary which is the basic structure of the Constitution of India.²

Background

When Article 124(2)³ and 217(1)⁴ provide procedure for appointment of judges in higher judiciary, how did the ‘collegium’ come into existence? There is no mention of ‘collegium’ in the Constitution. The collegium system emerged when the word ‘consultation’ was subjected to interpretation in the following two judgements of the Court. The Supreme Court Advocates on Record Association v. Union of India⁵ gave primacy to the opinion of the Chief Justice of India, while In the Presidential reference⁶  case gave the concept of the collegium system which is being followed till the present times. It has been a matter of great criticism that the direction contained in those judgements can be done only through a proper legislation and through Constitutional amendment and not through adjudication.⁷

Tug of war between the Judiciary and the Executive, who is superior?

Can Judiciary’s view totally eclipse the view of the executive forbidding the executive to evaluate it before formulating its advice to be tendered to the President? When the view of the Judiciary is same as that of the Executive, there is no question of primacy. The question of giving primacy to the opinion of any of the consultees arises only when there is conflict of opinion. The Judiciary would have the advantage of the views of both these consultees because it is best suited to assess the question of suitability on the proposed candidates. From that point of view great weight must be attached to the opinion of the Chief Justice of the High Court. In the overruled case of S. P. Gupta v. Union of India⁸, the opinion of the Executive regarding appointment was held more important on the ground that the Executive through the Legislators is answerable to the people regarding the functioning of the Judiciary.

The Bill appears to further the constitutional purpose that the selection should be made as a result of a participatory consultative process in which the executive and judiciary both are working together, none overpowering the other.

Now to the basic question of whether the increase of executive’s participation in appointments threatens the independence of Judiciary in any way.

Independence of Judiciary has two different aspects to it⁹

1. Administrative or Institutional Independence        
2. Decisional or Individual Independence   

While the latter is imperative for maintaining the dignity of judiciary and maintenance of impartiality, the former is also essential to curb any indirect interference in judicial function. Although the interpretations appear similar, they differ in terms of what constitutes a breach of the separation of powers. The doctrine of separation of power, so far as our Constitution is concerned, reveals an artistic blending and an adroit admixture of judicial and executive functions. The separation sought to be achieved by our Constitution is not absolute or complete. So far as the framers of our Constitution are concerned they had deliberately rejected the theory of complete insulation of the judicial system from the executive control. A breach under formalism would be a breach under functionalism only if the power in question either infringed on the core function of another branch or increased another branch's power.¹⁰ Thus, technically it does not violate the basic structure of the independence of Judiciary, but the adverse effect of political influences must be taken into account.

Lastly, An issue of concern

The Bill nowhere states that the recommendation of the said Committee would be binding, and therefore, the President is not barred from going against the recommendation of the committee. The word ‘consultation’ is different from ‘recommendation’.¹¹ While the quintessence of 'consultation' is deliberation, ‘recommendation’ may be subject to both acceptance or rejection much like the recommendations of the Law Commission.

Appointments of judges must, in themselves constitute a strong factor for independence and cannot be left to the exclusive discretion of the Executive and Legislature.¹² 

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^{1. See Government Of India Law Commission Of India, 'Reforms In The Judiciary – Some Suggestions' [2009] Report No. 230 1, 8 “As a matter of practice, a person, who has worked as a District Judge or has practiced in the High Court in a State, is appointed as a Judge of the High Court in the same State. Often we hear complaints about ‘Uncle Judges’. If a person has practiced in a High Court, say, for 20-25 years and is appointed a Judge in the same High Court, overnight change is not possible. He has his colleague advocates – both senior and junior - as well as his kith and kin, who had been practicing with him. Even wards of some District Judges, elevated to a High Court, are in practice in the same High Court. There are occasions, when advocate judges either settle their scores with the advocates, who have practiced with them, or have soft corner for them. In any case, this affects their impartiality and justice is the loser. The equity demands that the justice shall not only be done but should also appear to have been done.”↩} 

^{2. Sub-committee on Judicial Accountability v. Union of India, AIR 1992 SC 320; Kumar Padma Prasad v. Union of India, AIR 1992 SC 1213; High Court of Judicature, Bombay v. Shirish Kumar R. Patil, AIR 1997 SC 2631.↩} 

^{3. Article 124(2) reads as “Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose... “↩} 

^{4. Article 217(1) reads as “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.. “↩} 

^{5. Supreme Court Advocates-on-Record Association v. Union of India, AIR 1994 SC 268↩} 

^{6. In Re Special Reference, AIR 1999 SC 1↩} 

^{7. H.M.Seervai, Constitutional Law of India, (Silver Jubilee 4th Edition, Vol.1)↩} 

^{8. S. P. Gupta v. President of India, AIR 1982 SC 149↩} 

^{9. Frances Kahn Zemans, The Accountable Judge: Guardian of Judicial Independence, (1999) 72 S. CAL. L. Rev., p 625 “Dr. Zemans urges readers to consider the distinctions between decisional independence and institutional independence”↩} 

^{10. "Federalism." Free Online Law Dictionary. http://legal-dictionary.thefreedictionary.com/Federalism. Web. 9 Feb. 2014↩} 

^{11. Union of India v. Sankalchand Himmatlal Seth, AIR 1977 SC 2328; R. Pushpam v. State of Madras, AIR 1953 Mad 392↩} 

^{12. Principle 10 of the Basic Principles on the Independence of the Judiciary, 1985↩}

^{Author -  Vighnesh Kamat}

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