Delay in judge transfers: Supreme Court keeps warning of “unpalatable consequences”, the government caravan moves on

The transfer of judges has often been a bone of contention between the executive and the judiciary but in recent years healthy convention and governance decorum has slowly ebbed, resulting in what even sitting judges have alleged as upsetting of judicial seniority.

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LAST week, Justice Rajnesh Bhatnagar retired from the Delhi High Court.

The Supreme Court Collegium had recommended his transfer to the Rajasthan High Court on August 10, 2023. The collegium had also rejected his request to reconsider his transfer.

The Union government sat on the recommendation for almost a year, finally letting it become infructuous.

The reasons for the Union government's intractability on the issue of Justice Bhatnagar's transfer are not available in the public domain.

In October 2022, Justice Bhatnagar had authored a judgment of a division Bench which also comprised Justice Siddharth Mridul declining bail to activist and former Jawaharlal Nehru University (JNU) student Umar Khalid, who is facing prosecution under the Unlawful (Prevention) Activities Act (UAPA), 1967 in connection with the Delhi riots of 2020. Khalid has been languishing in jail since September 13, 2020.

Justice Bhatnagar's case is only one among many in the recent past where the government has flatly refused to follow the recommendations of the collegium.

On November 16, 2022, the collegium proposed the transfer of the then Acting Chief Justice of the Madras High Court, Justice T. Raja, to the Rajasthan High Court.

The recommendation was reiterated on April 19 last year, when the collegium requested the government to effectuate his transfer at the earliest. But a defiant Union government refused to budge. Justice Raja was allowed to retire from the Madras High Court in May 2023.

Also read: Give effect to Collegium's recommendations on high court transfers or face unpalatable consequences, Supreme Court tells Union Government

On April 20 last year, the collegium was compelled to recall its six-month-old recommendation to the Union government to appoint Orissa High Court Chief Justice Dr S. Muralidhar as Chief Justice of the Madras High Court, conceding to the government's refusal to give effect to the recommendation.

When Justice Muralidhar was serving at the Delhi High Court, a Bench presided over by him had on February 26, 2020 pulled up the Delhi Police for its inaction in lodging first information reports (FIRs) against Bharatiya Janata Party politicians Kapil Mishra, and parliamentarians Anurag Thakur (then the Union Minister of Information and Broadcasting) and Parvesh Sahib Singh Verma for their alleged inflammatory speeches leading up to the Delhi riots of February 2020.

The government continues to withhold transfers

The government has also withheld the transfers of as many as four judges of the Gujarat High Court. On August 3, 2023, a five-judge collegium of the Supreme Court decided to transfer Justices Alpesh Y. Kogje, Kumari Gita Gopi, Hemant M. Prachchhak and Samir J. Dave to the high courts of Allahabad, Madras, Patna and Rajasthan respectively.

However, the recommendations have been gathering dust at the Union ministry of law and justice for over a year.

The same is the case with the proposed transfer of Allahabad High Court judge Justice Prakash Padia to the Jharkhand High Court. The collegium had recommended Justice Padia's transfer on August 10 last year. The recommendation is yet to be effectuated.

CJI's opinion on transfers is determinative

The transfer of judges including a chief justice from one high court to another is made as per Article 222(1) of the Constitution of India.

The initiation of the proposal for the transfer of a judge is made by the Chief Justice of India (CJI). The CJI recommends the transfer of a high court judge in consultation with the four senior-most judges of the Supreme Court, which form the collegium. The collegium is also required to ascertain the views of the chief justice of the high court from which the transfer is to be effected and of the chief justice of the high court to which the transfer is to be effected.

Also read: 'Unpalatable consequences' swallow bitter pill as SC Collegium withdraws recommendation to appoint Justice Dr S. Muralidhar CJ of Madras HC

The transfer is made for the "better administration of justice". The consent of a judge for his first or subsequent transfer is not required.

In the Second Judges case of 1993, a nine-judge Constitution Bench held that the opinion of the CJI not only has primacy but is also determinative in matters of transfer of high court chief justices and judges.

The Memorandum of Procedure (MoP), a document agreed to by the executive and the collegium, indicating procedural guidelines for processing names for recommendations and their appointments and transfers by the President of India, states that after the recommendation of a transfer is received from the CJI, the Union minister of law and justice has to submit the recommendation along with all relevant papers to the Prime Minister who then advises the President as to the transfer of the judge concerned.

After the President approves the transfer, the secretary to the government of India in the department of justice informs the chief justice of the high courts and the chief ministers of concerned states, announces the transfer, and issues the necessary notification in the Gazette of India.

The MoP also states that in case there is a difference of opinion, the Union minister of law and justice consults the CJI again before putting up the papers to the Prime Minister for advising the President on the matter of the transfer. On approval of the President, the transfer is then announced in the usual manner.

As per the Second Judges case, if after due consideration of the reasons disclosed to the CJI, the recommendation is reiterated by the CJI then the recommendation ought to be given effect as a matter of healthy convention.

Policy of pick and choose and pocket veto

The Modi government has been following a policy of pick-and-choose despite the Supreme Court time and again expressing its concerns over the government's action of selectively giving effect to the collegium's recommendations.

What is even more surprising is that the inaction over these transfers continues even after the Supreme Court on the judicial side has rapped the government for not clearing the transfers on multiple occasions.

Also read: In open court, Justice Kaul and Prashant Bhushan mull over "very strange" listing business in appointment and transfer of judges case

On February 3, 2023, a Supreme Court Bench comprising Sanjay Kishan Kaul and Abhay S. Oka, while calling the transfer of judges "a serious issue; more serious than anything else" warned the Union government of "unpalatable consequences" if the collegium's recommendations to transfer high court judges were not given effect in the next ten days.

Justice Dr S. Muralidhar's transfer was among those pending at that time, and a couple of months later, the warning of "unpalatable consequences" had to swallow a bitter pill as the recommendation for his transfer was withdrawn.

On November 7 last year, while hearing a contempt petition against the Union government for not clearing the transfers and appointments of judges, a Bench comprising Justice Sanjay Kishan Kaul and Sudhanshu Dhulia observed that the pendency of transfer of judges was an issue of great concern as it had been selectively done.

"Once these people are already appointed as judges, where they perform judicial duties should not really be a matter of concern to the government and we hope that a situation would not come to pass where this court or the collegium has to take a decision which would not be palatable," the Bench lamented.

After that rebuke by the Supreme Court, the Union government dawdled, transferring five of the eleven judges whose transfers had been recommended by the collegium and were pending.

Six recommendations of transfers, four from the Gujarat High Court and one each from the Allahabad and Delhi high courts, still await action. These six proposed transfers are the transfer of the same judges as noted above which also includes the transfer of Justice Bhatnagar.

On November 20, 2023, when the Bench had taken up the contempt petition and flagged inaction of the Union government over the transfer of the judges, the Attorney General of India had requested the Bench to take up the matter after some time and assured the court that it would not be disappointed after looking at the efforts he promised to make to ensure the recommendations are acted upon.

Also read: Half-hearted constitutionalism: The Supreme Court's self-created conundrums

The Bench had acceded to the request of the Attorney General and directed to list the matter on December 5, 2023.

However, the contempt petition was never listed on December 5, as directed by the Bench. When Advocate Prashant Bhushan mentioned the matter before Justice Kaul, who was set to retire in a few weeks, informed Bhushan that he had not deleted the petition from his court nor was he unwilling to hear it.

When Bhushan exhorted that the Bench should seek an explanation about the "very strange" deletion of the matter from the registry, Justice Kaul told him, "I am sure the Chief Justice (of India) is aware of it."

He added cryptically, "Some things are best left unsaid."

On October 20, 2023, while calling the delay in acting on the recommendations of the transfer of judges as "troublesome and disturbing", Justice Kaul had averred that the Union government was disturbing judicial seniority through its policy of pick-and-choose.

A day after his retirement on December 25, Justice Kaul told the Hindustan Times that the collegium system is no longer the best mechanism and the executive and judiciary should develop a new system to avoid "secretive" or "back-door" consultations.

The contempt petition, which the Justice Kaul-led Bench had been hearing, has not been listed for hearing since November last year, even though the recommendations on the transfer of judges as well the appointment of judges continue to remain pending with the government.

Outburst of a former CJI

The government selectively giving effect to the transfer of judges had invited sharp criticism from former CJI T.S. Thakur as well. In 2016, the collegium headed by CJI Thakur recommended the transfer of Justice M.R. Shah from the Gujarat High Court to the Madhya Pradesh High Court.

The collegium had also recommended the transfer of Delhi High Court judge Justice Valmiki Mehta to the Andhra and Telangana High Court.

However, these two transfers were never given effect. At one point in time, a Supreme Court Bench led by the then CJI Thakur had warned the government that it would withdraw judicial work from these two judges.

Also read: Pulling the judiciary towards the Constitution is not browbeating, pushing it away is

"These (transfers) have not been given effect to. If this is the approach of the Union government, then we would have no option but to withdraw judicial work from these transferred judges," CJI Thakur had warned.

Senior advocate Yatin Oza, in a letter to the CJI, had alleged that Justice M.R. Shah's proximity to the ruling dispensation was allowing him to continue in the Gujarat High Court. Oza faced contempt of court proceedings by the Gujarat High Court owing to his letter. However, the Supreme Court stayed the proceedings.

After the retirement of CJI Thakur in January 2017, Justice J.S. Khehar took over the office of the CJI. He made no efforts to ensure that the recommendations of the collegium to transfer Justice Shah and Justice Mehta were given effect.

The collegium headed by Justice Khehar, for reasons not in the public domain, chose to recall the recommendation made by the earlier collegium.

On July 16, 2018, the collegium headed by the then CJI Dipak Misra recommended Justice Shah's transfer as Chief Justice of the Patna High Court, which was given effect promptly.

Speaking to the press, Justice Shah had referred to Prime Minister Modi as his "model and hero".

He eventually made it to the Supreme Court in November 2018 after his name had been recommended by a collegium headed by the then CJI Ranjan Gogoi.