Paying a Heavy Price

Despite a new mechanism forjudicial appointments and transfers being in place, judges are transferred without assigning any reason. This will adversely impact the justice delivery system of High Courts

- Yogesh Pratap Singh and Lokendra Malik

TRANSFERS are common and an integral part of service, except in cases where it is mala fide on the part of the authority. Any transfer order passed without proper justification due to personal vendetta, bias, influence or passed in lieu of punishment without following the rules of service is liable to be set aside as being illegal and arbitrary. However, this rule applies to all public services except judges of High Courts.

Transfers have been used as a device to punish judges for unfavourable judgments. A little after the first supersession, another threat to judicial independence was exerted through the mass transfers of High Court judges who delivered judgments inconvenient to the government during the Emergency of 1975-77. One of the victims was Justice SH Sheth who was transferred from the High Court of Gujarat to the Andhra Pradesh High Court. He challenged the validity of this order on the grounds that it was without his consent and without consultation between the president and the chief justice of India (SH Sheth vs Union of India, 1976). The Gujarat High Court rejected the petition and the matter reached the Supreme Court which disposed of the appeal on assurance by the Union of India to withdraw the transfers (Union of India vs SH Sheth, A.I.R. 1977).

But the controversy did not stop here and became a matter of consistent judicial discourse through the three judges transfer cases. The outcome was a new mechanism for judicial appointments and transfers precisely on the ground that the judiciary must be immune from executive influence. A cursory look at recent transfers of some High Court judges demonstrate that nothing has changed on the ground.