Justice Jayant Patel of the Karnataka High Court resigned on September 25, after he was transferred to the Allahabad High Court.

The transfer meant Patel lost the opportunity to become chief justice of the Karnataka High Court, where he was the second-most senior judge. In the Allahabad High Court, he would have been relegated to the position of the third-most senior judge. When appointing chief justices, the Supreme Court collegium usually (but not exclusively), considers a candidate’s seniority.

The resignation of Patel, who originally belonged to the Gujarat High Court, has caused a stir in the judiciary. The Karnataka State Bar Association has asked lawyers to abstain from work on October 4 to protest the transfer. In Gujarat, lawyers stopped work on Wednesday.

This was Patel’s second transfer. In 2016, he was moved from Gujarat to Karnataka, where he has since served as a puisne judge.

The manner in which the transfer was effected has raised serious questions about transparency in judicial appointments. Appearing in a debate on NDTV Wednesday evening, senior advocate Dushyant Dave alleged political interference in the decision. He noted that as acting chief justice of the Gujarat High Court, Patel had ordered the Central Bureau of Investigation to inquire into the murder of Mumbai teenager Ishrat Jahan by Gujarat police officers in 2004. They claimed that Jahan and her three companions were conspiring to kill Narendra Modi, who was then Gujarat’s chief minister. The investigation ordered by Patel led to charges being filed against several senior police officers and embarrassed the state government led by Modi.

These allegations aside, Patel’s transfer begs an important question: Did the Supreme Court follow its own observations on transferring judges?

Judicial transfers

Judges are appointed by a a five-member collegium, consisting of the Chief Justice of India and the four most senior judges of the Supreme Court. The collegium system of judges appointing their fellow judges developed over time through judgements of the Supreme Court. The most important of them was the Supreme Court Advocates On Record Association vs Union of India, 1993. The Constitution created a system in which the President would appoint judges after consulting with the Chief Justice of India. But the 1993 verdict effectively gave all powers to appoint judges to the judiciary.

It also dealt with their transfers and laid down guidelines on how the process should be handled. Referring to Article 222(1) of the Constitution, which gives the President the power to transfer judges, the judgement stated:

“There is nothing in the language of Article 222(1) to rule out a second transfer of a once transferred judge without his consent but ordinarily the same must be avoided unless there exist pressing circumstances making it unavoidable. Ordinarily a transfer effected in public interest may not be punitive but all the same the Chief Justice of India must take great care to ensure that in the guise of public interest the judge is not being penalised.” 

Two things stand out in this observation when applied to Patel’s case. One, he was being transferred for a second time. Two, it is clear from Patel’s resignation that the decision did not have his consent.

Although the consent of the judge being transferred is not strictly necessary, the 1993 judgment makes it clear that consent should be taken “unless there exist pressing circumstances making it unavoidable”. In addition, the circumstances must be in “public interest”.

Here lies the problem. The collegium’s decisions are not made public, which means there is no public scrutiny of the circumstances leading to a decision. Also, the Supreme Court has made it clear that the collegium need not justify its decisions. This is why allegations such as Dave’s are impossible to verify.

Further, transfers are not justiciable, which means that a judge who is transferred cannot challenge the order in the Supreme Court except if the transfer was made without the collegium’s approval – an impossible prospect as the President, following the 1993 order, does not have the power to appoint or transfer judges without the concurrence of the Chief Justice of India. The transfer has to be initiated by the collegium.

This touches upon the most crucial aspect of Patel’s transfer: what were the “pressing circumstances” and “public interest” that necessitated his move to the Allahabad High Court? The answer to this question may never be known given the opacity of the collegium.

One thing, though, is clear from reactions to Patel’s transfer by lawyers in Gujarat and Karnataka: he has a reputation of being an upright and efficient judge. Unlike, say, former Karnataka High Court judge PD Dinakaran, who was moved out to Sikkim in 2010 following corruption allegations, Patel apparently had no serious complaints against him.

Lawyers protest

This is the context in which lawyers’ groups are vociferously protesting Patel’s transfer. A resolution passed by the Karnataka State Bar Council on Tuesday stated:

“That the entire legal fraternity is anguished and is greatly disturbed by the shaking of faith/confidence in the collegium system; which has meted out such treatment to the Hon’ble Mr. Justice Jayant Patel, who apparently, has satisfactorily discharged his duties and functions as a Judge.

Members of the Bar perceive that, apparently decision makers in judiciary and executive have overlooked the aspirations and spirit of the National Judicial Appointments Commission verdict in achieving transparency by the actions reflected in recent events, like proposed transfer of Hon’ble Mr. Justice Jayant Patel on the eve of incumbent Chief Justice of Karnataka retiring and need to appoint another in the vacancy accruing.”

In a 2015 judgement rejecting the proposed National Judicial Appointments Commission, the Supreme Court recommended improving the transparency of the collegium system. But not much has happened on that front. The Centre and the Supreme Court are locked in a battle over the formulation of a new memorandum of procedure for judicial appointments, with the court objecting to certain clauses in the draft that give the Centre a greater say in the process.

Meanwhile, the Bar Council of India has issued a show cause notice to Dave for his allegations against Chief Justice of India Deepak Misra and the collegium. The Supreme Court Bar Association has expressed concern over the manner of Patel’s transfer, saying its executive committee will meet on October 3 to discuss the matter.