Law ministry circular sparks off protests amongst Supreme Court, high courts judges

Shankar: Setting off a furoreThe Indian judiciary is taking, some very hard knocks from the Government. Last month, a circular from Union Law Minister Shiv Shankar to state chief ministers spread anxiety and sparked off protests amongst the country's 400 and more judges of the Supreme Court and 16 high courts. The circular requested the chief ministers to obtain the written consent of all the 50 additional High Court judges being transferred as permanent judges to any other High Court in India.The letter created a furore in and outside Parliament. Supreme Court Chief Justice Y.V. Chandrachud sent a protest letter to Shankar, asserting that the Government could not make transfers without taking into confidence the chief justices of the high courts. The Bombay High Court restrained the Government from implementing the transfer circular, and other infuriated advocates were shaping up to fight the Government in the Supreme Court. Then there was a 150-minute furore in the Lok Sabha, reminiscent of the storm that followed the 1970 super session of three Supreme Court judges, and the Opposition charged the Congress (I) with trying to erode judicial independence. Said Rasheed Masood, Lok Dal MP: "Ever since the unseating of Mrs Gandhi by the Allahabad High Court, the Congress(I) has mounted an attack on the judiciary with the sole objective of weakening it. "Former additional solicitor-general Soli Sorabjee concurred: "The judiciary is facing its greatest threat."According to opponents of transfers, every additional judge is appointed to a particular court and is normally confirmed in the same court. As a majority of the judges are selected from the state judicial services or from practising lawyers, they are averse to any idea of moving out of their home states. Moreover, as High Court chief justices are appointed on the basis of seniority, the judges would lose the promotion race if they were transferred. Until 1975, only five judges were moved out of the high courts, but this was done with their consent.Chandrachud: Resisting the transfersStrategy:Mrs Gandhi's Government first used the transfers whip with gusto on 16 judges of various high courts during the Emergency. As most of these, like Justice Ranganathan of the Delhi High Court, had given judgments against illegal detentions, these transfers were branded as political victimisation. During Mrs Gandhi's second tenure, the chief justices of the Madras and Patna high courts were given their marching orders in February this year.The urge for such transfers stems from the ruling party's desire to get rid of the 110-odd judicial appointments of the Janata and Lok Dal regimes. The circular, in particular, seems part of a strategy to force the judges to quit rather than accept transfers away from home. As High Court judges are initially appointed for only two years, most of those appointed during the 33 months of Janata-Lok Dal rule could not be confirmed before the Congress(I) returned to power. More than 12 additional judges in the high courts of Delhi, Rajasthan, Madhya Pradesh, and Punjab and Haryana are due for confirmation in the coming weeks. One of the three Delhi High Court judges awaiting confirmation is O.N. Vohra. whose court convicted Sanjay Gandhi and Vidya Charan Shukla in the Kissa Kursi Ka case.Opposition leaders maintain that Vohra is one of those likely to be axed. He was given only three months' extension on March 3, along with justices Surendra Nath Kumar and Shankar Balkrishna Wad. But last year, the Government gave liberal two-year extensions to Justices Narinder Nath Goswamy and Sultan Singh - both of the Delhi High Court. Of the 24 judges whose terms have been extended, only five were given an extension of a year or more. Says a leading lawyer of the Supreme Court: "Never in the history of the Indian judiciary have a large number of judges been given just extensions instead of being confirmed in their respective courts."Kumar : Kept in suspenseHowever, the ruling party's fears about the political commitments of the judges seem to be unfounded. Of the 50 additional judges, 23 belong to the judicial services of the various high courts (see chart). All of them have been appointed on the basis of their seniority in the state services, and hardly any of the remaining 27 is known for his anti-Congress (I) views. But Congress (I) insiders maintain that the basic objective behind the latest move is to weed out most of the 21 additional judges in the high courts of Delhi and Bombay. Last month three judges of the Delhi High Court were given only 4 months extension. Says a Janata party leader: "It is not that they want to weed out some inconvenient judges. By asserting the right to transfer judges, the Government, in fact, wants to keep the judiciary under constant pressure."Growing Differences: V.M. Tarkunde, chairman of the People's Union for Civil Liberties and a former Bombay High Court judge, said: "We are trying to persuade the judges not to resign in a huff because of the humiliations heaped on them by the Central Government." In fact, the Government has adopted the novel technique of keeping the additional judges under continual pressure and uncertainty. Normally, a judge is informed of his confirmation at least two months before his term actually expires. But during the last six months, over 20 additional judges were informed of their confirmations the day they were to have relinquished their posts. Says Pran Nath Lekhi, a prominent Supreme Court advocate: "Holding back the confirmations of the additional judges is the worst kind of blackmailing tactic being adopted by Mrs Gandhi's government."Opposition leaders also allege that the Government has invented the idea of mass transfers of additional judges to pack the high courts with pro-Congress (I) persons and also to completely bypass the chief justices of the Supreme Court and the high courts who have to be consulted when transfers are contemplated. Despite a number of meeting with the chief justices, Shiv Shankar could not persuade them to accept his point of view. And, because of the growing differences between Chandrachud and the Government, only 14 of the 94 High Court vacancies have been filled so far.The Government is involved in the transfer controversy without bothering about the burgeoning backlog of cases in the high courts. Over 15,000 cases are waiting to come to trial for the last 10 years, out of a total of over three lakh cases. About 80,000 cases filed five years ago are yet to be taken up for hearing. The Patna, Allahabad and Calcutta High Courts top both in pending cases and vacancies: of the 80 vacancies in all the high courts, 30 were in these three alone. Predictably these vacancies could not be filled because of the differences in opinion between the chief ministers and the chief justices of the states. The Central Government's attempt to fill the empty seats did not yield any results because most of the high court chief justices and Chandrachud did not approve of the names suggested by the state Governments.Chandrachud reportedly made it clear that he would, not agree to the appointment of any known political activist. To support his stand, he pointed to the appointments approved by him during the Janata regime. Moreover, the process of filling the vacancies could not be initiated because of the Government's failure to appoint permanent chief justices in five high courts. The Delhi, Himachal, Rajasthan, Madhya Pradesh and Gauhati High Courts remained without chief justices for over six months. The acting chief justices were ultimately confirmed when Chandrachud did not budge from his stand of opposing large-scale transfers.The Government appears determined to plough a lonely and ominous furrow. It has not accepted the candidates for appointment to the high courts, sponsored by the various state Governments in con- sultation with the concerned chief justices. The Uttar Pradesh Government suggested seven names for the Allahabad High Court, but the Central Government has cleared only two of them because the 'loyalty' of the other five is in doubt.Stout Defence: The ruling party denies that the Government's move to transfer the additional judges means interfering with judicial independence. Shankar, in his reply to the Opposition in the Lok Sabha claimed that his government was simply implementing the recommendations of various Law Commissions, state Reorganisation Commission and Bar Associations. These bodies, he claimed, had suggested that one-third of a high court bench should be from outside the state so that it was insulated against local pressures.According to Congress(I) sources, the Government's move is aimed at ensuring that the lawyer relatives of high court judges do not get undue advantage. It is said that four sons, one brother, three brothers-in-law, one father-in-law and over half-a-dozen cousins of the sitting judges of the Delhi High Court are practising in Delhi.He also disclosed that future recruitment to high courts would be done with the proviso that the judges could be transferred elsewhere, if necessary. And he stoutly defended his circular by saying: "The basic question is whether the independence of the judiciary means a total attitude of touch-me-not, whether any action taken by the executive should be considered as interference in the independence of the judiciary." Such seemingly plausible arguments cannot, however, conceal the fact that the Government and the judiciary are on opposite sides of the fence.Published By: AtMigration Published On: Feb 24, 2014 14:28 IST--- ENDS ---

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Law ministry circular sparks off protests amongst Supreme Court, high courts judges

The Indian judiciary is taking, some very hard knocks from the Government. Last month, a circular from Union Law Minister Shiv Shankar to state chief ministers spread anxiety and sparked off protests amongst the country's 400 and more judges of the Supreme Court and 16 high courts.

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