The transfer of Justice Nikhil Kariel of the Gujarat High Court as a puisne judge of the Patna High Court has led to spontaneous protests from its advocates, leaving many unanswered questions about the Supreme Court Collegium’s functioning.
THE Roman poet Juvenal in his book ‘Satires’ asked a poignant question, “Quis custodiet ipsos custodes?” or “who is guarding the guardians”. In Gujarat, it is its bar association.
Earlier today, the Gujarat High Court Bar stormed into the Chief Justice’s court and sought to mourn the death of independence of judiciary in light of the transfer of Justice Nikhil Kariel as a puisne judge of the Patna High Court. The Chief Justice seemed unaware of the transfer and a phone was passed to him showing him a report from Bar and Bench to that effect. What happened then is something we do not know, for the live streaming of the court was shut off. The Indian Expressalso noted, “Gujarat High Court Advocates Association (GHAA), prior to appearing before the court, sent out a message that it has called for an extraordinary general body meeting of the association at 2 pm on Thursday “to discuss and pass an appropriate resolution on the Hon’ble Supreme Court Collegium recommendation transferring Justice Nikhil Kariel from Gujarat High Court to Patna High Court”.
This transfer is mired in controversy and will undoubtedly reignite questions of the lack of transparency in judicial transfers. All transfers have to be made in public interest, that is, for promoting better administration of justice throughout the country.
Justice Kariel was born on May 09, 1974 at Rajkot. He did his schooling in Rajkot, Nadiad and Vallabh Vidyanagar, and was enrolled as an Advocate with Bar Council of Gujarat in 1998. Justice Kariel was elevated as Judge of the Gujarat high court on October 04, 2020.
As Justice V.R. Krishna Iyer reminded us in S.P. Gupta versus President of India (1981), “Independence of the judiciary is not genuflexion; nor is it opposition to every proposition of Government. It is neither judiciary made to opposition measure nor Government’s pleasure.” But this is not the only time that the Gujarat High Court Advocates Association (‘GHCAA’) has stood up for the independence of the judiciary.
A history of standing up for the independence of the bar
It must be noted that the GHAA has a history of standing up for the judiciary. In recent memory, the Gujarat high court had stood up for Justice Akil Qureshi. The resolution of the GHCAA noted that the “honest judge” was known for his “integrity, [and] sound legal acumen”. In 2019, Yatin Oza, the then president of the GHCAA had also written to the Supreme Court Collegium headed by then Chief Justice of India Ranjan Gogoi, and requested him to not wait for the state’s response and process the recommendations forwarded by the Collegium of the Gujarat high court. This, he argued, was in line with the Supreme Court’s Second Judges’ judgment of 1993. In 2019, the Association had also gone on strike to oppose vacancies in the judiciary.
The GHCAA must be commended for standing up for the independence of the judiciary as well as one of its own, and as a true legacy bearer of the greats that come from the high court such as Justices D.A. Desai, P.N. Bhagwati, and lawyers like the late Advocate General J. M. Thakore and Kirit Rawal.
Earlier this year, a young lawyer, Aniq Kadri was summoned under Section 41A (notice of appearance before police officer) of the Code of Criminal Procedure, 1973 for discharging his professional duties when he filed the vakalatnama in an anticipatory bail application of his senior, I. H. Saiyad, who was made the accused in a case. Notably, Justice Kariel had granted anticipatory bail to Saiyad at the Gujarat high court. But when Kadri was summoned, the GHCAA, in a resolution, noted that , “As an Association of advocates, it is our duty to question and challenge the abuse of police power and to safeguard the rights, privileges and interest of advocates.” Further, it also resolved that, “If Mr. Anik Kadri is compelled to attend police station pursuant to the summon issued to him or to make statement upon the conclusion of all legal proceedings, more than three hundred advocates of GHCAA will go to the police station with Mr. Anik Kadri and stand with him in protest against the police excesses and abuse of police power.”
In the past, the Gujarat High Court Bar went on a long strike on the ground that the acting Chief Justice was not confirmed. The entire Bar had also gone on strike to protest against the delay in elevation of its members already recommended for appointment as judges to the high court.
If the Chief Justice was seemingly unaware, as it seemed from the livestreaming, then this raises important questions about this transfer, and what the motive of the collegium was. This transfer is mired in controversy and will undoubtedly reignite questions of the lack of transparency in judicial transfers. All transfers have to be made in public interest, that is, for promoting better administration of justice throughout the country.
At a time when the Executive is clamping down on civil liberties, judges should be indeed free to act without fear or favour, affection or ill-will. India is no longer England before 1701, where the judges only held office at the pleasure of the Crown. An independent judiciary will undoubtedly be the sentinel on the qui vive and the last bastion of safeguarding the rights of the citizens.
Such arbitrary transfers raise more questions than they answer. A truly independent judiciary is a fine concept as an amorphous abstraction. But when it comes to clashing with the various notions of correctitude that the executive demands, it is much harder to sustain.
Unlike other bar associations like the Bombay Bar Association which bears a history of hundreds of years, the Gujarat Bar is a young bar, established only in 1960. The GHCAA must be commended for standing up for the independence of the judiciary as well as one of its own, and as a true legacy bearer of the greats that come from the high court such as Justices D.A. Desai, P.N. Bhagwati, and lawyers like the late Advocate General J. M. Thakore and Kirit Rawal.
As academic and jurist Dr. G. Mohan Gopal noted in an earlier article for The Leaflet, “It appears that a reigning unstated rationale for involuntary transfer — in addition to placating the executive to the extent it happens — appears to be ‘disciplining’ High Court judges short of impeaching them… To protect the independence of our High Courts, the power to transfer High Court judges has to be abolished.”