Justice Tahilramani: The case of an arbitrary transfer

Source :SIFY
Last Updated: Fri, Sep 13th, 2019, 21:51:29hrs
Justice Tahilramani: The case of an arbitrary transfer
In a decision that has taken some by surprise, the Supreme Court collegium decided to transfer Justice Vijaya Kamlesh Tahilramani of the Madras High Court to the Meghalaya High Court. The reason for transferring her from the fourth largest high court in terms of judge strength to the smallest one is not fully known.

The decision of the transfer was taken at a recent meeting of the collegium which was headed by the Chief Justice of Indian Ranjan Gogoi. The Supreme Court released a statement stating the decision was unanimous. Usually, senior judges from a bigger high court aren’t transferred to a small high court. The Madras High court has a sanctioned strength of 75 judges and is one of the oldest High Courts in the country. The Meghalaya High Court was established in 2013 and has only three judges.

Tahilramani was among only two women who were the heads of high courts; the other being Chief Justice Gita Mittal of the Jammu and Kashmir High Court. Now there will be only one woman heading a high court, as justice Tahilramani resigned in a letter addressed to President Kovind citing the transfer as the reason. Advocates in the Madras High Court, R. Vaigai, Anna Mathew and S. Devika, in a column for The Hindu called the transfer decision a downgrade that amounted to humiliation –

The transfer of a Chief Justice from one of the bigger High Courts to one of the smallest High Courts in the country is an obvious case of downgrading and amounts to public humiliation of the highest judicial officer in a State. Her response to this humiliation has been graceful but resolute — resignation”.

Justice Tahilramani was appointed the Chief Justice of the Madras High Court on August 8, 2018. She was transferred from the Bombay High Court where she was the acting Chief Justice from 2015 to 2017. Her last administrative order was to contempt of court petitions should be listed only before judges who have the relevant portfolio. Maneesh Chhibber, in an op-ed for The Print, writes on why this controversial decision by the collegium shows that it’s a flawed system –

“By resigning rather than being made to pay for her stand, Madras HC Chief Justice has left CJI Gogoi and other collegium judges embarrassed. five senior-most judges of the Supreme Court, including Chief Justice Ranjan Gogoi, have extended her a helping hand in bringing to light the inherent failure of the collegium system”.

Chhibber argues that there is a good amount of inconsistency in the appointment and transfer of judges by the collegium. None of the proceedings of the collegium are made public. Chhibber cites the example of Punjab and Haryana High Court judge Ajay Kumar Mittal, whom the collegium cited a report stating his unfitness but recommended his name for the Chief Justice of the Delhi High Court.

This episode now has remnants of a case from nearly four decades ago. In 1981, the President issued an order which stated the transfer of then Chief Justice of the Madras High Court, M. M. Ismail, to the Kerala High Court. Petitions against the transfer came up before a seven-judge bench of the Supreme Court; this would come to be known as the First Judges Case.

That case paved the way for the creation of the collegium system. In this case, Justice Ismail, in an affidavit did not question the legality of the decision and didn’t want anyone litigating for or against him. He resigned from office. Now, the Supreme Court is facing criticism for this decision regarding Justice Tahilramani. Justice M. Katju, former Chief Justice of the Madras HC (2004-2005) who retired from the Supreme Court in 2011, in an op-ed for The Week, states that its unfair to blame the collegium and offers a reason for the transfer –

The real reason for chief justice Tahilramani's transfer, as I was informed in my conversations, was that she was hardly working in the Madras High Court. While there are many outstanding justices in the Madras High Court, the behaviour of the chief justice—who is expected to lead from the front—was having an adverse effect on the working of the court”.

While the exact reasons aren’t known, the All India Bar Association (AIBA) sided with the collegium and took exception to the resignation letter from Justice Tahilramani. The statement read in part, “She ought to have sportingly accepted the offer and proceeded to assume charge in the Meghalaya High Court, without discriminating that High Court and the people coming under its jurisdiction”.

Sridhar Acharyulu, Former Central Information Commissioner, Professor of Constitutional Law in Bennett University, in a column for The Federal, criticises the transfer decision calling it unusual. He mentions the Justices’ decision in the 2017 Bilkis Bano case of the Gujarat riots. She upheld the life sentences of 11 and reversed the acquittal of five police officers and two doctors –

It is an unusual transfer. The Collegium’s move has generated many questions and raises doubts about many basic tenets of our Constitution and governance of judicial administration besides judicial independence. Secrecy about transfer and reasons for the decisions of the collegium are against the basic character of administration of justice”.

The judiciary over the past couple of years has come under the spotlight for a variety of reasons. It’s come under criticism and put itself out there and questions about its independence and autonomy have only increased. The collegium being rather secretive when it comes to transfers only fuels speculation about the decision-making process.

More columns by Varun Sukumar