NEW DELHI: In its free history, India, while having witnessed political inefficiency and executive paralysis, has shown immense confidence in its judiciary. Perhaps, also because the Indian Judiciary has upheld the rights of the ordinary individuals. Men of immense integrity and independence of thought have adorned the benches of the Supreme Court and the High Courts.

From rescuing the nation from the tight clutch of the Emergency to widening the scope of the right to life under Article 21 of the Constitution, the Indian judiciary has stood as a strict enforcer of the rights of the individual.

Judicial discipline and uniformity has only been confidence inspiring. The Judiciary, by its inherent uniformity and discipline, has developed a working rule of law in its own democratic way. However, the recent incident of Hon’ble Justice Karnan issuing Stay on the Transfer Order passed by his Lordship, the Chief Justice of India, transferring Hon’ble Justice Karnan from Madras High Court has raised multiple questions, hitting at the very core of fundamental constitutional principles.

While the country has seen mud-slinging as a routine drill in the political sphere, with one political party accusing the other for something or the other, the judiciary has always stood as one institution despite being constituted of several individuals. The voice of a judge is taken as the voice of the institution. There is little in-fighting in the Indian Judiciary that surfaces, if at all there is. However, the recent incident seems rather abrasive.

The incident concerns various concepts like separation of powers, independence of judiciary, doctrine of checks and balances all of which are at play at the same time. Hon’ble Justice Karnan has, in the Order, wherein he requested his Lordship, the Chief Justice of India to file his response in a suo moto petition, perhaps also raised the question of internal independence of the judiciary as well, i.e. the insulation of the working of a Judge from interference by other members of the judiciary or the institution itself. This can be reasonably assumed from the words of Justice Karnan’s order, “As a regard for our judicial fraternity, I request Your Lordships not to interfere in my jurisdiction, as I am in the process of finalizing an Order on merits.”

As far as the issue of transfer of judges of High Courts is concerned, the same is provided for under Article 222 of the Constitution of India and mentions that the President of India may after consultation with the Chief Justice of India, transfer a Judge from one High Court to the other. Article 217 of Constitution of India provides for the appointment and conditions of the office of a judge of a High Court and the Proviso to Article 217(1) of the Constitution mentions that upon the transfer by the President of a Judge to any other High Court, the office of such judge shall be vacant.

Hon’ble Justice Karnan, in his stay order, also referred to the nine judges bench judgment of the Hon’ble Supreme Court of India in Supreme Court Advocates on Record Association and Others Versus Union of India [(1993) 4 SCC 441], presided over by S. Ratnavel Pandian, A.M. Ahmadi, Kuldip Singh, J.S. Verma, M.M. Punchhi, Yogeshwar Dayal, G.N. Ray, Dr. A.S. Anand and S.P. Bharucha, JJ.

The judgment closely examined the majority view of the Hon’ble Supreme Court in S.P. Gupta versus Union of India [(1982) 2 SCR 365] and considered the primacy of the opinion of the Chief Justice of India in regard to the appointment of judges to the Supreme Court and a High Court and in regard to the transfers of High Court judges/ Chief Justices.

Referring to the constituent assembly debates, the Court observed that High Courts were intended to constitute an All India Cadre. The Court was further of the view that there is nothing under Article 222 to require the consent of a judge for his first or even a subsequent transfer. The power under Article 222 is available throughout the tenure of a High Court judge and is not exhausted after the first transfer.

However, the Supreme Court, while passing the judgment, was not oblivious of the possibility of arbitrariness in the decision of appointments/ transfers of judges and thereafter suggested norms to be followed by the Chief Justice of India in exercising its powers as the head of the Indian Judiciary. The Supreme Court suggested the plurality of judges in the formation of the opinion of the Chief Justice of India and observed that the Chief Justice could take into account views of the Chief Justice of the High Court from which the judges is to be transferred, any judge of the Supreme Court whose opinion may be a significance in that case, as well as the views of an at least one other Chief Justice of High Court, or any other person whose views are considered relevant by the Chief Justice of India. Personal factors like the response of the judge in question, is references of places of transfer to be taken in to account by the Chief Justice of India before forming his final opinion objectively, were also considered to be pertinent points to be considered.

Summarizing the observations, the Supreme Court gave the following pointers, amongst others:

  1. Initiation of the proposal for appointment in the case of the Supreme Court must be by the Chief Justice of India, and in the case of a High Court by the Chief Justice of that High Court; and for transfer of a Judge/Chief Justice of a High Court, the proposal had to be initiated by the Chief Justice of India. This is the manner in which proposals for appointments to the Supreme Court and the High Courts as well as for the transfers of Judges/Chief Justices of the High Courts must invariably be made.
  2. In the event of conflicting opinions by the constitutional functionaries, the opinion of the judiciary symbolised by the view of the Chief Justice of India, has primacy.
  3. The opinion of the Chief Justice of India has not mere primacy, but is determinative in the matter of transfers of High Court judges/Chief Justices.
  4. Consent of the transferred Judge/Chief Justice is not required for either the first of any subsequent transfer from one High Court to another.
  5. Any transfer made on the recommendation of the Chief Justice of India is not to be deemed to be punitive, and such transfer is not justiciable on any ground.
  6. In making all appointments and transfers, the norms indicated must be followed. However, the same do not confer any justiciable right in any one.
  7. Only limited judicial review on the grounds specified earlier is available in matters of appointments and transfers.”

Perhaps, some may ask if it is truly a story of an individual versus the institution? All the law and jargon aside, the real question is, ‘will the recent incident disturb the judicial uniformity and discipline?” And that is for time to tell. However, what is certain is that the whole incident is rather unsavory to a nation that looks up to its judiciary every time it is disappointed in its elected representatives.

(The writer is an advocate at the Supreme Court of India, New Delhi. )