A regular case or sentencing post?

Supreme Court Collegium Recommendation to transfer Madras High Court Chief Justice Sanjiv BanerjeeFrom Munishwar Nath Bhandari, the senior-most judge of the Meghalaya High Court as well as the Allahabad High Court, to the Madras High Court, eyebrows have been raised.

many questions

Justice Banerjee was appointed as a judge of the Calcutta High Court on June 22, 2006. Appointed as Chief Justice of Madras High Court on December 31, 2020, and that assumed office on January 4, 2021, Without promotion, he would have to retire from office on November 1, 2023. He has two more years to serve in the Madras High Court.

The Calcutta High Court has a sanctioned strength of 72 judges and the Madras High Court has a sanctioned strength of 75 judges. The proposal is to transfer them to the Meghalaya High Court established in 2013 with a sanctioned strength of only four judges. It is therefore only appropriate that some would say as punishment the transfer of a judge, who was managing a larger High Court for about 10 months, until the collegium provides reasons for its decision.

Article 222 of the Constitution provides for the transfer of a Judge (including the Chief Justice) from one High Court to another. In Justice Banerjee’s case, since the motion came from the Supreme Court Collegium, the central government, which has to advise the President of India, is entitled to call for relevant material before giving any advice. If it is not satisfied, the central government can ask the Supreme Court to reconsider its decision. Recently, the Union Law Minister, Kiren Rijiju said that the Chief Justice of India (CJI) will “create a new dawn in the judiciary”. The CJI, in turn, said that Mr Rijiju was “the only law minister or politician in recent times who recognized and appreciated our judicial hard work”. Therefore, it may be possible that both decision makers have a similar intention for the transfer.

Justice Banerjee was appointed as the Chief Justice of a High Court with three years remaining of service. He was found suitable for that post. How is it that within 10 months of his tenure, he is being found unfit for the same High Court and being transferred to a distant state, which currently has only two judges?

another shocking decision

Justice Bhandari’s transfer is equally astonishing. In its September 16 decision, the collegium Recommended transfer of Justice Bhandari to Madras High Court, The details of his appointment reveal that he was initially appointed as a judge of the Rajasthan High Court on July 5, 2007. If he joins the Madras High Court, he will become the senior-most judge since Justice TS Sivaganam was transferred to Calcutta. The High Court and the next two judges – M. Duraiswamy and T. Raja – are certainly junior to him. With his transfer, Justice Bhandari will become the acting Chief Justice of the Madras High Court.

Even though the consultation process in making Justice Bhandari the Chief Justice of the Madras High Court is delayed, let’s say, any issue is raised by the state government, Justice Bhandari will continue as the acting Chief Justice and on September 12, 2022 will retire. Justice Bhandari’s tenure in the Rajasthan High Court was not free from controversy. After being appointed as a judge in that High Court, he was transferred to the Allahabad High Court. The collegium proposed his transfer in 2019 and the reason for this was that the transfer was in the interest of “better administration of justice”.

Justice Bhandari, through representations on January 18 and 23, 2019, requested that his proposed transfer be deferred for further consideration. The Collegium rejected his representation and the published note, it said: “The Collegium has carefully considered the above representation and has taken into account all relevant factors including their request to postpone their proposed transfer for further consideration in future.” On reconsideration, the Collegium is of the considered view that it is not possible to accede to his request. Justice Bhandari joined the Allahabad High Court on March 15, 2019 and with time, he became the senior-most Judge of that Court.

If the Supreme Court Collegium of 2019 thought that Justice Bhandari should leave the Rajasthan High Court to “administrate justice”, what was the change that prompted the 2021 Collegium to move to the Madras High Court with full details that He will lead. that court? What was once a punishment transfer has now become a rewarding transfer. If a Judge is not considered suitable for one High Court, how does he become suitable for another High Court? The same question is being asked in legal circles.

And does this mean that the decision to transfer Justice Banerjee to the Meghalaya High Court was made to facilitate Justice Bhandari’s elevation as the Chief Justice of the Madras High Court? Also, if the decision was taken on September 16 itself, why was it made public only after about one and a half months? This is a question that many people are asking.

Normally when such motions are made, a judge in the Supreme Court who hails from the state in which the transferred judge is holding office is also consulted. With regard to the transfer of Justice Banerjee, there are four judges who are eligible to be called advisory judges. In Justice Banerjee’s case, why was consultation only with the junior most judges of the Supreme Court and not senior judges?

not a regular affair

The assessment is not made on the discharge of the duties of the judge as there is no credible basis for making such analysis. In terms of disposal of cases and writing skills, one cannot find fault in the present Chief Justice. If there are other reasons for their transfer, then such transfer offer can be termed as a mere penal and not a regular matter. The time has come for the central government to clear these doubts and clear them.

Justice K Chandru is a retired judge of Madras High Court