Justice dispensation

By Dr Olav Albuquerque
Friday, 21 February 2020

Transfers of judges rouse lawyers’ consternation

High court judges are sworn to uphold dharma aka our Constitution. And that is why Justice Satyaranjan Dharmadikari chose to resign rather than be sworn in as the chief justice of the Orissa high court. His father was a Bombay high court judge who often recited Urdu couplets and was fluent in Hindi. But Justice Dharmadikari’s dharma meant his karma dictated family life overrode justice dispensation in an unfamiliar state.

Another judge, Justice Akil Abdulhamid Kureshi, younger than Jusice Dharmadhikari by just 38 days, meekly accepted his transfer to the Tripura high court last year as chief justice. Forty judges have been transferred by the apex court collegium during the last three years.
As the seniormost judge of the Bombay high court, Justice Dharmadhikari could not have been sworn in as the chief justice of his parent high court unless he had less than six months to retire. But Justice Dharmadikari had a tenure of less than two years in the judiciary. The next seniormost judge in the collegium of the Bombay high court is Justice Dharmadhikari’s cousin, Justice Bhushan Pradyumna Dharmadhikari, who will now officiate as the acting chief justice of the Bombay high court. He is older than chief justice Pradeep Nandrajog by about 60 days as both have been born in 1958.

Ironically, Justice Dharmadhikari announced his resignation to the very same lawyer who has been fighting against dynastic appointments in the judiciary, Advocate Mathews Nedumpara. He is the founder of the National Lawyers Campaign for Judicial Transparency and Reforms, and had asked his petition be listed the subsequent week before the same bench. But Justice Dharmadhikar announced he had resigned and Thursday was his last day in court.

“I thought I had not heard him properly,” the redoubtable Advocate Nedumpara later told the media. This Malayalee lawyer has calmly faced a contempt notice in the Supreme Court and also in the Bombay high court without flinching. Be that as it may, another judge, Justice Zaka Haq’s transfer from the Nagpur bench to the Aurangabad bench of the Bombay high court had the High Court Bar Association (HCBA) up-in-arms to protest against his transfer. This is ridiculous because when they accept judgeship, lawyers or judges from the district courts have to consent to being transferred to any of the 24 high courts. Hence, being sent from Nagpur to Aurangabad is no big deal because judges from the Panaji bench are rotated to the principal bench in Mumbai or the other benches at Nagpur or Aurangabad.

But the transfer policy is a burning issue among the judges because their family life is disrupted.

A few of the judges may have an unsavoury past with the apex court collegium deciding to transfer some sitting judges for the “better administration of justice” which is a euphemism for the fact that the collegium has received complaints about these judges. And these complaints may contain some substance although they cannot be proved in a court of law. Unlike the past collegium resolutions, the details of complaints are no longer uploaded on the official website which is why the public are left guessing as to why a judge has been transferred to the premier Bombay high court which will soon be renamed as the Mumbai high court if the Maharashtra legislature has its way.

For those who came in late, the transfer policy for high court judges was devised on March 18, 1981, when the then Union minister for law and justice, P. Shiv Shankar Rao, sent a circular to the governors and chief ministers of all states to elicit the consent of additional (temporary) judges to be transferred to any high court within India. Rao asked them to: "(a) obtain the consent of all additional judges to be appointed as permanent judges in any high court in the country, excluding their parent high court. They could name three high courts, in order of preference, to which they would could be made permanent judges and (b) obtain the consent of lawyers or district judges who were to be appointed in future to any high court in the country their preference for three high courts where they would prefer to be transferred."

The transfer policy was justified to promote national integration, combat narrow and parochial tendencies like caste, kinship and other affinities. This transfer policy was challenged by a Gujarat high court judge which later came to be known as the S.P. Gupta case but was upheld because there was a provision in the Constitution which permitted judges to be transferred.

What is not known is transfers of judges is used as a weapon to discipline independent- minded judges who feel that the rule of law overrides the dignity of those who rule India like BJP chief Amit Shah or Prime Minister Narendra Modi. The last casualty was Justice Akil Abdulhamid Kureshi who was shunted as chief justice to the tiny Tripura high court although he was tipped to be the chief justice of the much larger Madhya Pradesh high court. That is why Justice Markandey Katju flayed his nemesis former CJI Ranjan Gogoi for allegedly succumbing to pressure tactics of the executive.

In a separate incident, Supreme Court judge Justice R Bhanumati fainted while dictating the order on a Centre's petition for separate hanging of the four convicts in the Nirbhaya gang-rape and murder case on Friday. The judge had to be carried back into her chamber, even as she regained consciousness after blacking out for a few seconds. She was taken on a wheel chair for medical treatment, perhaps proving that judges are as human as the rest of us. And ordering the hanging of a convict weighs heavily on a woman judge’s conscience-even though the hanging is of a rapist who had no qualms to invaginate a helpless young woman. After all, nobody thinks of the victim and her mother who was weeping profusely due to the tactics adopted by the convicts’ lawyers to thwart the hanging.

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