A ‘relative’ Clean up: The curious case of transfer of Judges in the Higher Judiciary

The corridors of most of the High Courts in the country are abuzz with rumours of the Supreme Court implementing a major shake up in the higher judiciary by ordering forced transfers of HC Judges across High Courts. The SC Collegium has already ordered about 20 inter se transfers between the High Courts of Allahabad, Punjab & Haryana, Rajasthan, Delhi, Andhra Pradesh and Tamil Nadu.  If the whispers in the corridors are to be believed, the Supreme Court Collegium has lined up the transfer about 120 HC Judges in the near future (In fact Legally India speaks of a hit list of CJI Kapadia here ). The reason being given for the sudden spate of transfers is that they are being done in ‘public interest’. Our High Courts however are imperious bodies in themselves, accustomed more often to order rather than follow. Therefore this apparent ‘clean up’ transfers being ordered in ‘public interest’ has in the least come across as a shock, certainly to the Bar and perhaps to the Bench as well.

One of the main perceived elements of ‘public interest’ behind such and similiar transfers is that the High Court Judge being transferred out has kith or kin practicing in the same High Court.  In fact the issue of transfer of a judge whose relatives/ relations are practicing in the same High Court is not a new one and has been on the forefront for quite a while now. Many High Courts have already sent or have been asked to send to the Supreme Court a list of sitting judges who have their relatives practicing in the same High Court.  Every High Court Bar has always had a fraction of its members clamouring for the transfer of such ‘Uncle Judges’, insinuating bias and favouritism by such or other judges towards their kith or kin (For example, see here and here).

For an issue that concerns and affects lawyers in the higher courts directly, discussion and debate on the subject have raged on without really looking at the law that governs the field.  The Bar Council of India Rules, 1975 in Rule 6, Chapter II mandate that  an advocate shall not enter appearance, act, plead or practise in any way before a court, Tribunal or Authority, if the sole or any member thereof is related to the advocate as father, grandfather, son, grand-son, uncle, brother, nephew, first cousin, husband, wife, mother, daughter, sister, aunt, niece, father-in-law, mother-in-law, son-in-law, brother-in-law daughter-in-law or sister-in-law. Further, the Supreme Court, in its Full Court Meeting in 1997 had adopted a Charter of ‘The Restatement of Values of Judicial Life’, meant to serve as a guide of judicial conduct for judges.  The aforesaid Charter was subsequently adopted by all the High Courts of the Country.(The full charter has been reproduced in The CPIO, Supreme Court Of India vs Subhash Chandra Agarwal, the famous 2009 Delhi High Court Judgment on Supreme Court-RTI, which can be accessed here ) Rule 4 of the Charter reads:

“(4) A Judge should not permit any member of his immediate family, such as spouse, son, daughter, son-in-law or daughter-in-law or any other close relative, if a member of the Bar, to appear before him or even be associated in any manner with a cause to be dealt with by him.”

As a rule therefore, a relative or relation of a Judge cannot and does not appear in front of the Judge in any case or proceedings. In practice, such a relative does not even enter the court of the Judge when the court proceedings are on and the judge is still holding court. However, despite the aforesaid Rules, the argument raised is that there is a bias in favour of the kith and kin of such judges by other judges, in front of whom they regularly appear and get positive orders passed on account of such favouritism.  The 230^th Law Commission report (here) also supports the view of transfer of Judges whose relatives are practicing in the same High Court, and states that:

“Often we hear complaints about ‘Uncle Judges’. If a person has practised in a High Court, say, for 20-25 years and is appointed a Judge in the same High Court, overnight change is not possible. He has his colleague advocates – both senior and junior – as well as his kith and kin, who had been practising with him. Even wards of some District Judges, elevated to a High Court, are in practice in the same High Court. ..the equity demands that the justice shall not only be done but should also appear to have been done… In any case, the judges, whose kith and kin are practising in a High Court, should not be posted in the same High Court. This will eliminate “Uncle Judges…”

In light of these facts, the question that comes to mind is whether this rationale of transferring judges who have relatives or relations practicing in the same court is valid or not? I believe that any transfer based on such reason alone is a misguided and self-defeating endeavour that does not benefit the Higher Judiciary.

As I explained above, a relative of a Judge will never appear, plead or practice in any manner whatsoever in front of him. The objection to a Judge holding office in the same court as his kith and kin are practicing, is then limited to a situation where a Judge is considered to be favouring the relatives/relations of other Judges who can appear in front of him or where Judges are supposed to have colluded amongst each other to obtain inter-se favours for their relatives. The very basis of this presumption is flawed in my view. The foremost criteria for appointing a person as a Judge of the Higher Judiciary, is and should be that he must be a fair, just and honest candidate of the utmost moral and professional integrity and competence. Therefore, when a person is appointed as a High Court or Supreme Court Judge, he, by definition, already satisfies the essential pre-requisites of independence and impartiality. He has been elevated on this constitutional post after extensive verification of his reputation, antecedents and after the disclosure of relatives who are practicing in the same Court. He has been elevated because he already satisfies the requirement of not favouring his or any other Judge’s relatives or relations and deciding every case on the applicable law and merits of the case. The argument here is not that favouritism amongst Judges does not exist, or that bias or prejudice by any Judge in favour of his or anyone’s kith and kin should be condoned in any manner. In fact if any Judge is found guilty of such a practice, then merely transferring him out would be a very inadequate punishment as he would have failed the basic requirements of his office. However, to argue that this logic can extend to transferring out every judge who has a relative practicing in the same court, would be to negate the very basis of the Office and would be a misdirected effort to clean up the judiciary.

Secondly, an accepted opinion amongst most practicing advocates is that it is the lawyers who are directly elevated from the Bar to the Bench that make the best judges. Usually, a lawyer who is directly elevated to the Bench of a particular High Court by the High Court Collegium would have been practicing in that Court for about 20 years at least, and would be a very established and reputed name in his or her field, having a large number of contacts and acquaintances. If the aforesaid rationale for transfer of judges is taken to be correct, then where should one draw the line? Why stop at kith and kin alone then? A judge who has a large number of colleagues, seniors, juniors, associates, friends, acquaintances, school, college and office mates, etc practicing in the same High Court should also be transferred out because the presumption of bias should attach in these cases as well. Conversely, the Court should then also prevent all people associated with a judge before and after his elevation to appear in front of him, including his colleagues, seniors, juniors, associates, friends, acquaintances, school, college and office mates, etc. We don’t adopt this absurd stand because we rightly presume the judge will hold his office with fairness, integrity and impartiality, irrespective of his relations and acquaintances.

Thirdly, there is a reason why a pre condition of immediately transferring out a Judge from his parent High Court on his elevation from the Bar to the Bench does not exist. If such a pre-condition existed, many of the best lawyers who would make the best Judges, would simply refuse to get elevated to the Bench. Elevation to the Bench brings with it a large number of social and professional restrictions that are not easy to imbibe or follow. If elevation brought with it a transfer out of the parent state, where a lawyer would have to leave behind his family and friends, then the best lawyers would simply refuse elevation. It will be the Higher Judiciary that will lose out on quality in the process.

Finally, the assumption that judicial corruption increases because close relatives practise in the same court is unfounded in my view. Both honesty and corruption are individualized concepts. It is absurd to suggest that corruption would reduce by transferring ‘Uncle Judges’ to different High Courts, because an honest judge will be fair and impartial in every Court and a biased judge would be partial and unfair in every Court he presides over. Surely, the values of Judicial Life are not contingent merely on a lack of opportunity.

Therefore, instead of cleaning the image of the Higher Judiciary, such transfers have an opposite effect in the public mind as it legitimizes the presumption that this kind of favouritism for relatives was prevalent before the transfers were ordered. While transfers in the Higher Judiciary might be welcome in many circumstances, the SC must be mindful of the reasons behind these transfers. (In my subsequent posts I will also discuss the absurd practice of transferring controversial or ‘tainted’ judges to what are known as ‘punishment’ High Courts.)