Why a judge’s transfer from Madras to Meghalaya has raised concerns about judicial independence

The news of the Supreme Court collegium recommending Madras High Court Chief Justice Sanjib Banerjee’s transfer to Meghalaya High Court has met with controversy. Multiple lawyers and lawyers’ associations have written to the collegium asking it to reconsider its decision and to also provide reasons for this transfer.

This is not the first time a transfer has turned contentious. Multiple transfers in the past year have raised concerns on how opaque the entire process of appointment and transfer of judges is.

What happened?

On November 9, the collegium published its recommendation from a meeting held on September 16, recommending the transfer of Justice Sanjib Banerjee from the Madras High Court to the Meghalaya High Court. The collegium is the body comprising the chief justice of India and other senior judges of the Supreme Court who decide on the appointments and transfers of judges to the Supreme Court and various High Courts.

The Centre approved the transfer on Monday.

Banerjee has had a 10-month tenure at the Madras High Court which started on January 4. Before that, he was a judge at the Calcutta High Court. Banerjee is due to retire in November 2023, which means that, were he not transferred out, he would have been the chief justice at the high court for almost two and a half years.

The chief justice of a high court is the head of the state’s judiciary and is responsible for various administrative functions as well, such as allocating cases to judges and deciding the listing of matters.

Why has it become controversial?

Banerjee is being transferred from the Madras High Court, one of the biggest in the country, to Meghalaya High Court, one of the smallest. The Madras High Court handles around 35,000 cases a year and has a sanctioned strength of 75 judges, while Meghalaya High Court handles around 900 cases a year and has a sanctioned strength of four judges. While all high courts in the country are equal in law, transfers from bigger courts to smaller ones are often seen as punitive.

Further, the collegium resolution recommending his transfer was passed on September 16, while the resolution was made public only on November 9. This one and a half month delay has also been questioned by multiple people, including the Madras Bar Association and a former judge of the Madras High Court.

Banerjee’s judgments have frequently taken the government to task. He passed various judgments this year where he criticised the government for its handling of the Covid-19 pandemic. In April, when Assembly elections were happening during the second wave of Covid-19, he criticised the poll body for allowing large rallies. “Election Commission officers should be booked on murder charges probably,” Banerjee said.

In another case, he remarked that the allegations that the Bharatiya Janata Party had misused Aadhaar details of voters for campaigning seemed credible.

He also held that certain provisions of the controversial Information Technology (Guidelines for intermediaries and Digital Media Ethics Code) Rules, 2021 issued by the Modi government would harm media independence, and agreed with the stay on the applicability of these rules.

What do people say about this transfer?

Banerjee’s transfer is one of the most controversial transfers in recent times with multiple people associated with the legal world raising red flags.

K Chandru, a retired judge of the Madras High Court has written that, given the facts, it is fair that this transfer would be seen as “as a punishment unless the collegium provides reasons for its decision”.

The Madras Bar Association passed a resolution on Sunday that they were “deeply concerned with the opaqueness” surrounding the transfer and asked for the decision to be reconsidered. Thirty one senior counsels also sent a representation to the collegium vouching for Banerjee’s work and saying that they were “unable to fathom the reasons for his sudden transfer”.

On Friday, 237 lawyers from Madras High Court wrote to the collegium, citing concerns about the transfer, arguing that “punishment transfers” that were common during the Emergency had hampered the independence of the judiciary. The Campaign for Judicial Accountability and Reform has also written to the collegium saying that if no answer is provided then “an adverse inference is likely to be drawn” that he is being “‘punished’ for some reason”.

Shrouded in secrecy

The transfer of judges has been controversial earlier too. In 2019, VK Tahilramani, the then chief justice of the Madras High Court, was transferred to the Meghalaya High Court – exactly what is happening to Banerjee now. She resigned as a result.

With the collegium, as per standard procedure, providing no reasons for the transfer, it sparked off a wave of speculation. An op-ed in the Hindu held that the “media has reported that the transfer is a reaction to her judgment in the Bilkis Bano case that concerned the Gujarat riots of 2002”. While at the Bombay High Court, Tahilramani had, in 2017, awarded life imprisonment to 11 people for the gangrape of a Muslim woman during the 2002 Gujarat pogrom that took place while Narendra Modi was chief minister.

Post this speculation, in an unprecedented development, the collegium’s “considerations” for the transfer were allegedly leaked to the media with the Indian Express reporting that these included her work ethic, political links and financial transactions.

A long list of controversial trasnfers

• In October this year, Vinod Yadav, additional sessions judge at Karkardooma Court in Delhi was transferred to another district court by the Delhi High Court. Yadav had constantly pulled up the Delhi Police for its investigation in the Delhi riots case, while the judge who has replaced him has observed that the Delhi Police did its job with integrity.
• In December 2020, Jitendra Kumar Maheshwari, who was the chief justice of the Andhra Pradesh High Court was transferred to the Sikkim High Court, after the state’s Chief Minister Jagan Mohan Reddy complained to the Supreme Court that the High Court was stalling his policy decisions.
• In February last year, the Union government issued a notificiation for the transfer of Justice S. Muralidhar, a Delhi High Court judge, just the day after he passed critical remarks against the Delhi Police while listening to the Delhi riots case. His transfer led to protests by the Delhi High Court Bar Association.
• In 2018, when Justice Akil Kureshi was expected to become the chief justice of Gujarat High Court, he was transferred to the Bombay High Court where he would be fifth in seniority and therefore would not be chief justice. In 2010, he had granted the Central Bureau of Investigation, the custody of the current Home Minister Amit Shah in the Sohrabuddin Sheikh encounter case.
• In 2017, Jayant Patel, who was about to become the chief justice of the Karnataka High Court, had resigned when he was transferred to the Allahabad High Court. Patel was the acting chief justice of the Gujarat High Court before he was transferred to Karnataka in 2016, where he was the second senior-most judge. He had led the bench that ordered an investigation into the murder of Ishrat Jahan by Gujarat police officers in 2004 when Narendra Modi was Gujarat chief minister.

An opaque process

The collegium has often been criticised for being opaque. In 2020, retired Supreme Court judge Jasti Chelameswar told Bloomberg Quint, “I never understood as even a member of the collegium as to why a particular high court judge is being transferred.” Chelameswar was the second-senior most judge at the Supreme Court and had been a part of the collegium that decides the transfers.

In the initial periods of Indian democracy, judges were transferred sparingly. This only changed during the Emergency with the Indira Gandhi government using mass transfers as a political tool. In theory, the collegium was created in the 1990s as a way to prevent such politicised transfers.