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Tahilramani's transfer unusual

Kashmir Times. Dated: 9/12/2019 1:11:21 AM

Madras HC Chief Justice's transfer to Meghalaya HC once again exposes flaws and weaknesses of the collegium system

The unusual transfer of the Chief Justice of Madras High Court, Justice Vijaya Kamlesh Tahilramani, to Meghalaya High Court leading to her submitting resignation has caused big embarrassment to the Supreme Court and Chief Justice of India. The transfer in a hush-hush manner ordered by the CJI and the latter's refusal to reconsider the issue has also caused understandable disquiet among the lawyers, who supported the stand taken by Justice Tahilramani on many issues including dispensation of justice and changes in the mechanism in the larger interest of the people of the state. The transfer and subsequent resignation has also exposed the weaknesses and flaws in the collegium system, which was constituted to look into such sensitive issues. The Constitution does provide for such transfers from one HC to another, it is extremely rare that the senior-most Chief Justice in the country is shifted from a large court with a complement of 75 judges to one of the newest courts, which has a strength of only three judges. It is no surprise, therefore, that the judge, who entered the superior judiciary in 2001, and is the senior-most HC judge in the country, chose to resign, rather than continue in circumstances bordering on not only humiliation but also lack of confidence in her working. Unfortunately, the collegium rejected her request for reconsideration without assigning a reason. It is easy to argue that one HC is as good as any other, that such transfers should not be seen as a 'demotion', and that the CJI should be free to transfer the head of any HC in the interest of 'better administration of justice'. However, it is a fallacious argument when one considers that there are no known complaints about her performance or any public controversy around her judicial or personal conduct. It is possible that the transfer is based on an internal performance assessment, or complaints not available in the public domain. However, in the absence of any explanation, the Madras HC Bar cannot be blamed if they see the transfer as punitive action on the part of the CJI and the SC. If it is performance-related, a question arises as to whether all judges are being assessed on the same criteria by the collegium or not. If that be the case, then the assessment made in the course of review should be made available in the public domain.
The controversy over the transfer of senior most HC Chief Justice also brings into focus the flaws in the collegiums system of appointments and transfers. In recent years, the central government and the collegium have been disagreeing frequently on the latter's recommendations for appointments. However, judicial transfers have been initiated solely at the instance of the CJI in the past. Therefore, the perception that Justice Tahilramani's transfer has something to do with her judgment in the Bilkis Bano gang rape case, when she was in the Bombay High Court, is quite misconceived. It was after this verdict that she was appointed Chief Justice of the Madras High Court, and a year has passed since then. The Memorandum of Procedure relating to appointments and transfers of high court judges says the opinion of the Chief Justice in this regard 'is determinative'. And in the case of a Chief Justice of a High Court, the CJI needs to take into account, 'only the views of one or more knowledgeable Supreme Court Judges' while proposing a transfer. In the Second and Third Judges cases, the Supreme Court felt that the fact that the proposal is initiated by the CJI and recommended by a plurality of judges is enough as a safeguard against arbitrary transfers. But, the Justice Tahilramani controversy shows that the systemic faults of the collegium system's opaqueness and the scope for personal opinions colouring decision-making remain unaddressed. It also leaves the scope wide-open for the arbitrary transfer of senior most judges of the HCs for one reason or the other in near future.