[Editorial Analysis] Transfer as punishment

Mains Paper 2: Polity
Prelims level: Chief Justice of High Court
Mains level: Judicial appointments and issues

Context:

• The Chief Justice of the Madras High Court Sanjib Banerjee has been abruptly transferred to head the Meghalaya High Court, the second such instance of the head of a court with a sanctioned complement of 75 judges being asked to take over a court with a strength of four.

• It has come within 10 months of his assuming office, raising the question whether he was being punished for some obscure reason.

• In the absence of any assigned reason, or even a known circumstance, there is bound to be speculation on whether his transfer has anything to do with his stern approach and stinging oral observations while seeking accountability from the Government and other institutions.

Problems with transfers and appointments:

• Opacity in Transfers: The most obvious aspect of the functioning of the collegium system of judicial appointments and transfers is its opaqueness.

• Opacity in Judgements: Decisions that have no explanation, or can only be explained in terms of one’s own perception about the functioning of the judge affected by it, have become quite common.

• Vacancies: There are about 5166(25%) Vacancies in subordinate courts in the country out of 22,036 posts. Meghalaya has a vacancy of 59.79%, 42.18% posts in UP, 37.7% in Bihar.

• Delay in Appointment: There is no smooth and timeline bound process. Thus the recruitment cycle exceeds the time limit prescribed by SC. (153 days for two-tier process and 273 for 3-tier process).

Similar instances:

• In September 2019, Justice Vijaya K. Tahilramani resigned after being shifted from Madras to the Meghalaya High Court at a time when she was the country’s senior-most Chief Justice.

Issue about transfers:

• Power of transfer: The Memorandum of Procedure for judicial appointments and transfers says a proposal to transfer a High Court judge can only be initiated by the CJI, “whose opinion in this regard is determinative”.

• Aim of transfer: “better administration of justice” only.

• No reason required: However, it is not clear why a senior puisne judge in another High Court and due for elevation could not be accommodated there.

• Views of other Judges: the views of “one or more knowledgeable Supreme Court judges” are taken. These views are considered by the five-member Collegium. This system was put in place as a safeguard against arbitrary transfers at the instance of the executive.

Conclusion:

• HC Judges’ tenures must be long for stability: High Court Chief Justices also play an important role in identifying judicial talent for appointments and streamlining administrative functions.

• It would be reasonable to expect that a serving Chief Justice is given a tenure long enough in a High Court to discharge these functions effectively.

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Prelims Questions:

Q.1) With reference to the National Generic Document Registration System (NGDRS), consider the following statements:

1. It is an in-house advanced software application for the registration system developed by NIC.

2. Currently it is implemented in all States.

Which of the statements given above is/are correct?
(a) 1 only
(b) 2 only
(c) Both 1 and 2
(d) Neither 1 nor 2

Answer: A

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