Arbitrary Transfers Of High Court Judges Must Stop Now.

It is most hurting, most shocking and most distressing to see that the arbitrary transfer of High Court Judges in our country is not stopping in our country at all which is hurting the smooth functioning of our judiciary immensely as some are even resigning in protest. Just recently we saw Justice Satyaranjan Dharmadhikari of Bombay High Court who was next in line to be the Chief Justice of Bombay High Court resigning in protest against his transfer as his family life would be hugely affected which he found unacceptable. Talking to reporters, Justice Dharmadhikari said that he had resigned as he had been elevated as the Chief Justice of the High Court of another state, although he did not want to leave Mumbai. He disclosed that, “I had to resign due to purely personal and family issues…I did not want to leave Mumbai and they were not ready to elevate me as the Chief Justice of Bombay High Court.”

It is high time and the arbitrary transfer of Judges must stop now immediately! Judges should be transferred only with their consent or when there is a very strong ground which can offer valid and legitimate reasons for doing the same and which must be disclosed! The aura and dignity of the Judges of the High Court must be maintained!

As it turned out, after the  proposed transfer of Justice Dr S Muralidhar of the Delhi High Court decided by the Supreme Court collegium was announced, the Executive Committee of the Delhi High Court Bar Association has resolved to observe complete abstinence from work on February 20 to protest the proposal. The resolution was passed in an emergency executive meeting held at 3 PM on February 19, after the news about the collegium proposal came out in the morning. Justice Dr S Muralidhar enjoys an unblemished and unimpeachable reputation and his several landmark judgments which he has delivered in his tenure as a High Court Judge in Delhi speaks for themselves!

Be it noted, in an urgent meeting of the Executive Committee of Delhi High Court Bar Association held at 3 pm on February 19, 2020 at the office of the Bar Association, the following resolution was unanimously passed:-

(i)                         The Delhi High Court Bar Association expresses its shock, dismay and outrage at the transfer of one of the finest judges to have adorned the Bench – Hon’ble Dr. Justice S Muralidhar – by the collegium of the Hon’ble Supreme Court.

(ii)                      Unequivocally and in the strongest possible terms, the Delhi High Court Bar Association condemns the said transfers. Such transfers are not only detrimental to our noble Institution but also tend to erode and dislodge the faith of the common litigant in the justice dispensation system. Such transfers also impede free and fair delivery of justice by the Hon’ble Bench.

(iii)                   The Delhi High Court Bar Association sincerely hopes that the collegium of the Hon’ble Supreme Court revisits the issue and recalls the move to transfer Hon’ble Dr. Justice S. Muralidhar from the High Court of Delhi to the Punjab and Haryana High Court.

(iv)                   The Delhi High Court Bar Association also resolves to request its members to abstain from work tomorrow, i.e. 20th February as a token of protest as the said transfer is a rarest of rare case, the majesty of our revered Institution is at stake.

A copy of this resolution to Hon’ble Chief Justice of India.”

To say the least, in an SMS message sent out to all members on morning of February 19, 2020, the Delhi High Court Bar Association (DHCBA) of which Mohit Mathur is President and Abhijat is Hony. Secretary said in simple and straight language that, “DHCBA expresses its shock and unequivocally and in the strongest possible terms condemns the transfer of Justice Dr S Muralidhar by the Collegium of the Supreme Court. The transfer will be a great loss to our institution.”

It may be recalled that Justice Dr S Muralidhar who was made a Judge of the High Court in 2006 is the third senior Judge of the High Court of Delhi. He has been part of several bold and notable decisions in his capacity as a Judge of Delhi High Court. To name a few, the decriminalization of homosexuality, application of RTI to the office of CJI, conviction of UP PAC police cops in Hashimpura massacre case, conviction of Congress leader Sajjan Kumar in the 1984 anti-Sikh riots case  which had claimed the life of more than 3000 Sikhs in Delhi alone etc.

It may also be recalled that earlier ex-Madras High Court Chief Justice Tahilramani had resigned on September 6, 2019 after being transferred to Meghalaya! Nothing on earth can be more unfortunate than this that a woman Chief Justice who by her talent and merit risen so high was compelled to resign even though she had disposed of 5040 cases throughout her tenure as the Chief Justice and was able to dispose of at least 70-80 cases per day! It was Justice Tahilramani who while holding office as Acting Chief Justice of Bombay High Court had in May 2017 upheld the conviction and life imprisonment of 11 people in the Bilkis gang rape case which was transferred to Maharashtra from Gujarat by the top court!

Needless to say, Justice Tahilramani had resigned days after the collegium had declined her request for reconsideration of her transfer to Meghalaya High Court! She deserved to be the Chief Justice of India but what an unbeatable irony that she resigned before even entering the corridors of the Supreme Court as a Judge! How can women be empowered if such a shinning example of talent, humility and politeness is compelled to resign in protest against her transfer to Meghalaya High Court?

No doubt, sources privy to the September 6 dinner told the media that almost all High Court Judges had in unison requested her to reconsider her decision to resign. But she politely refused as she was deeply hurt by her sudden transfer to a much smaller High Court! A source said to media on condition of not being named that, “However, she was resolute and refused to budge. People could feel her pain. She said, her conscience was clear and that she would be leaving the institution with the satisfaction of having performed well.”

As it turned out, a section of lawyers practicing in the Madras High Court shot off a representation to the Supreme Court stating that, “These kind of arbitrary transfers whittle away the independence of the judiciary and the confidence of Judges.” The representation had been signed by advocates NGR Prasad, G Masilamani, R Vaigai and 100 others. The memorandum read as follows: “To now transfer her to one of the smallest High Courts is nothing short of a punishment and a humiliation. It cannot be justified on the principle of administrative interests, which is an expression that can be used in every case. It is ironical that a person of her seniority is being assigned to the smallest High Court. Any transfer should meet with an element of fairness but it is noticed, of late, that there appears to be no norms in the matter of transfer of Judges.” Recalling the words of former Supreme Court Judge V Khalid that transfer could be a more dangerous weapon than dismissal, the lawyers said that, “It is a matter of concern that there are no checks and balances in matters of administration of judiciary. The style of functioning of the collegium leaves one with the impression that the High Court is subordinate to the Collegium. This affects the majesty of the High Courts and erodes their primacy of position in the Constitutional scheme of things.”

It is high time and Supreme Court must also reconsider its decision so that more Judges don’t take the route which other Judges like Tahilramani and Justice Satyaranjan Dharmadhikari had to take due to which our judicial system suffers immeasurably and irreparably! It must be reiterated yet again at the risk of repetition that arbitrary transfer of High Court Judges and Chief Justices must stop now forthwith! If Delhi High Court Bar Association has gone on a token strike against this transfer of Justice Dr S Muralidhar, it is a very serious thing and it deserves due consideration by the Supreme Court and its collegium!

Bluntly put: How long can India afford to lose such distinguished legal luminaries like former Chief Justice of Madras High Court – Tahilramani and former Justice of Bombay High Court – Satyaranjan Dharmadhikari? Such a sensitive and serious issue certainly can no longer be put on the backburner or in a cold storage! It must be addressed swiftly, seriously and systematically! It brooks no more delay anymore now!

In sum, the Judges and Chief Justices of High Courts certainly deserve much better and fair treatment from the Supreme Court collegium! If Judges with impeccable reputation like Tahilramani, Dharmadhikari and others keep resigning one after the other due to their sudden and arbitrary transfers, the very smooth functioning of judiciary especially the High Courts will come under serious question which cannot be permitted ever to happen under any circumstances! One can only fervently hope now that Justice Dr S Muralidhar does not resign too similarly as it is the Delhi High Court which will suffer the most which alone explains why the Delhi High Court Bar Association is standing solidly behind him and very rightly so!

Sanjeev Sirohi

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