In Re transfers to ‘Punishment’ High Courts

In a previous post (here) I had discussed the recent spate of forced transfers initiated by the Supreme Court in the Higher Judiciary, of Judges who had ‘relatives’ or ‘kith and kin’ practicing in the same High Court. I had argued that the rationale behind this policy was erroneous and ended up in undermining the image of the Higher Judiciary. Transfer of judges in the Higher Judiciary has always been a vexed question for the Apex Court. In recent times, the Supreme Court has been following an even more absurd and controversial practice: that of transferring allegedly errant, controversial or ‘tainted’ judges to what are known as ‘Punishment High Courts’. The Supreme Court’s way of dealing with a High Court judge who has been under the scanner for allegations of corruption or judicial impropriety, is to transfer such Judge to smaller High Courts of the Country having comparatively marginal case load and backlog. The North- Eastern States seem to be the favourite dumping ground of the Apex Court, with the Sikkim High Court bearing the brunt of such transfers. With a sanctioned strength of only 3 Judges, the Sikkim High Court at Gangtok is often referred to as the ‘kala pani’ of High Court Judges. (See for example here)

The issue of such ‘Punishment’ transfers came to the forefront recently in the wake of the Justice Dinakaran controversy. The Justice Dinakaran Controversy  snowballed into a crisis-like situation for the Apex Court, with no easy solution at hand. Seeing no way out of the dilemma, the SC Collegium finally (and rather conveniently) decided to transfer the former Chief Justice of the Karnataka High Court, to the Sikkim High Court instead of bringing him to the Supreme Court. However, Justice Dinakaran’s transfer to the Sikkim High Court is not an isolated example. Consider the following transfers:

• Justice BK Roy, Chief Justice of the Punjab and Haryana High Court, was transferred to the Guahati High Court in May 2005, after 25 of the then 28 Judges of the Punjab and Haryana High Court went on a strike against him. Thereafter, on a complaint being filed by 15 Judges of the Guahati High Court against him, the SC Collegium again transferred him to the Sikkim High Court in September 2005.
• Justice B J Sethna of the Gujarat High Court, who was in the eye of the storm for several reasons, including allegations of assaulting another High Court Judge in January 2007 (here), was transferred by the Collegium to the Sikkim High Court in April 2007. He however, chose to resign instead of moving to Gangtok.
• Justice Ajoy Nath Ray, from being the Chief Justice of the Allahabad High Court, the biggest High Court of the Country, was transferred to the Sikkim High Court, the smallest High Court of the Country. The Times of India indicates (here) that he was transferred on account of his unpopularity amongst his fellow High Court judges.
• Justice Nirmal Yadav was transferred from the Punjab & Haryana High Court to the Uttaranchal High Court after her name was involved in the infamous cash at judges-doors scam that surfaced on 2009.
• Justice Sushil Harkauli  and Justice JCS Rawat were transferred out of the Allahabad High Court to the Jharkand High Court after the multi-crore Ghaziabad Provident Fund scam of 2008 surfaced.

This absurd practice of the SC Collegium of transferring controversial Judges by practically dumping them to ‘Punishment’ High Courts, where such judges are allowed to carry on judicial and administrative work, has few supporters amongst the Bar and the Bench. There were massive protests by the Sikkim Bar Association on Justice Dinakaran’s transfer to Gangtok, his oath ceremony was boycotted by the entire Bar. (see here and here).  Even amongst the Judges, such transfers are considered to be a stigma and a punitive measure. Justice BK Roy, in a letter written to the CJI in 2005, responded to his transfer as follows (in fact the entire J. BK Roy controversy was covered in detail by Tehelka, and can be accessed here):

“In the circumstances it is, with respect, surprising that I am now being proposed to be transferred (to the Gauhati HC) in breach of the established convention that no chief justice has ever been transferred without his consent… I regret to convey, as already conveyed to Your Lordship in my meeting on November 28, 2004, that my transfer from Punjab and Haryana High Court appears to be punitive”

This bizarre approach of the SC Collegium in tackling judicial indiscipline, and corruption in the higher judiciary, by conveniently transferring the Judge in question to these ‘punishment’ High courts, defies all logic. The Supreme Court appears to be completely at sea in exercising its Supervisory Powers over the High Courts and seems to be skirting responsibility by conveniently passing the buck to these scapegoat High Courts. In my view, irrationality is writ large in such transfers. Firstly, by virtue of transferring errant and controversial judges to these selected High Courts, the Supreme Court seems to be creating a distinction between different High Courts of the Country. Such transfers indicate that it is justified to send an errant judge to lets say the Sikkim High Court, because it’s a small High Court with limited workload. The justice being dispensed by the Sikkim High Court is therefore less important and it would be acceptable for a controversial Judge to pass judgments on the subjects of the Sikkim High Court. This weapon of transferring judges from one High Court to another as a disciplinary measure then completely defeats the rule of law.

Secondly, it seems incredulous and completely unfair to expect the Bar as well as the people who fall under the jurisdiction of these regional High Courts to accept being governed by allegedly tainted judges. Imagine a surgeon in a major Government hospital of a Metro who has gained notoriety on account of numerous failed surgeries, on account of ignorance or incompetence and has been under the scanner due to protests or complaints lodged against him. Then imagine the validity of the justification of transferring him out to a smaller hospital in a suburb as punishment, where he is given a free reign to conduct his surgeries on the patients of that hospital.   This is the kind of justification that the members and subjects of these High Courts are expected to swallow. If the transfer is being done as a reprimand and as a disciplinary measure, then at a preliminary level at least the Supreme Court seems to be accepting the gravity of charges leveled against an errant judge. In such a situation, it is morally as well as jurisprudentially wrong to impose the authority and power of a tainted judge on the people of a particular regional High Court, over the people of another larger or more important High Court. How can a person not found fit to be a judge of one High Court, be considered fit to be a Judge of another High Court on his transfer? Surely having a lesser pendency or backlog cannot be considered to be an invitation for tainted judges to be posted in that State. It is more than justified for any High Court Bar Association to feel slighted and discriminated over such step-motherly treatment by the Apex Court.

There is no definite policy in place to deal with judicial impropriety and the process of impeachment of errant Judges in India is perhaps harder than removing the elected Government itself. In such a situation, the best possible solution is perhaps to direct a tainted judge to recuse from all forms of judicial and administrative work, till the time his name is cleared. The investigation into all allegations of judicial impropriety must be swift and prompt. If then, such a Judge comes out clean, there is no need or justification for transferring him out to another Court. If, on the other hand, he is found guilty, immediate action in terms of Constitution must be initiated against him, in order to uphold the integrity of the Courts. However, this stop gap arrangement of transferring ‘tainted’ judges to ‘punishment’ High Courts is indicative of a short-sighted approach, without taking into considerations the long term ramifications of such transfers.