“Justice Anup Kumar Goswami, C.J of Sikkim High Court has been appointed as Chief Justice of the High court of Andhra Pradesh and the Chief Justice of Andhra Pradesh High Court, Justice J.K.Maheswari has been appointed as Chief Justice of Sikkim high court (A report in the media)
Though, in effect, they look like routine transfers, to fulfill Constitutional niceties.
Though few more transfers were effected for the purpose of this discussion these two transfers/ appointments are enough.
Constitution of India, of India: Article, 222.Transfer of a Judge from one High Court to another.-
(1) The President may, after consultation with the Chief Justice of India, transfer a Judge from one High Court to any other High Court.
(2) When a Judge has been or is so transferred, he shall, during the period he serves, after the commencement of the Constitution (Fifteenth Amendment) Act, 1963, as a Judge of the other High Court, be entitled to receive in addition to his salary such compensatory allowance as may be determined by Parliament by law and, until so determined, such compensatory allowance as the President may by order fix.
The President of India remains the appointing and transferring authority. However, two matters need clarification regarding the procedure of appointment of the Judges of the Supreme Court (SC) and appointment and transfer of Judges of the High Courts (HC).
Earlier the matter was under the Union Ministry of Home Affairs. Now the Ministry of Law and Justice is dealing with them. Another and more important point to be noted is the power of the recommending authority.
Then it was the prerogative of the Chief Justice of India (CJI). His recommendations were ‘recommendations’, pure and simple. The govt was at liberty to accept or reject then. In October 1998, the SC evolved a new Constitutional methodology according to which the Collegium, wherein the CJI and four Senior Most Judges of the SC would recommend the names for appointment to the SC and HCs and transfer of the HC Judges.
The Union Govt has the option to return the recommendations. But if the Collegium reiterates the recommendation, the gvot is bound to act upon it.
Through a letter, Dt, 6th Oct. 2020, to the CJI, the Chief Minister (CM) of Andhra Pradesh (AP.) accused Supreme Court’s sitting judge, N. V Ramana of ’influencing the sittings of the (AP) High Court including the roster of a few honorable judges’. The roaster is the prerogative of the CJ of the HC. The letter also contained certain irregular land transactions involving the family members of Justice Ramana.
Even as the pros and cons of the letter were being discussed both in the political and legal circles, a letter Dt.Nov. 4, 1961 was addressed to Lal Bahadur Shastri, the Home Minister of India by Damodaram Sanjeevaiah the CM of AP, was retrieved from the National Archives of India. The letter made certain allegations against Justice P.Chandra Reddy, C.J. of A.P. Sanjeevayya prayed: “The least that could be done is to transfer Mr. Chandra Reddi immediately. This will be also in pursuance of the recommendations of the States Reorganisation Committee to effect such transfers, particularly of pernicious elements in such high judiciary. I only look to gentlemen like you, the Hon’ble Chief Justice of India and the Prime Minister of India to give relief to this State and its people.”
Justice P.B.Gajendragadkar, late CJI in his Autobiography, TO THE BEST OF MY MEMORY, without mentioning Justice Chandra Reddy by name makes a reference to the incident.: ” During my tenure as CJI, I had, unfortunately, to deal with many delicate situations. I heard complaints against the CJ of Hyderabad (AP) HC, from persons of status whom I regarded as reliable and respectable, that the CJ did not show sufficient independence in the discharge of his functions and even with regard to the administrative orders he passed.” Gajendragadkar consulted Justice Koka Subba Rao, a puisne judge of the supreme court and the predecessor of Chandra Reddy as CJ of AP. The CJI visited Hyderabad and personally enquired about the matter.
Gajendragadkar writes ‘in fairness’. he asked the CJ of AP.: “You give me the names of your lawyers and your colleagues whom I should take into my confidence and ask relevant questions”. CJI precisely met and enquired the Lawyers and Judges named in the list supplied. To his ‘disagreeable surprise’, there was almost unanimous support to the complaint. When few wavered on ‘personal considerations’ the CJI categorically told them: “This is not a matter of doing harm to the CJ. It is a matter of protecting the integrity and the reputation of the HC, and this suley are more important than the possible harm to the reputation of the CJ, which may follow if any action is taken on the complaints.” After the meeting, the CJI frankly told the CJ that: “From the inquiry – informal but extensive, which I had made – I had unfortunately come to the conclusion that many of the complaints were well-founded.” The CJI told the CJ of HC that “I did not want to suggest any action which would discredit him in the eyes of the public, but I would propose to the Union Govt to send him to Madras as the CJ of that HC………. Naturally, he was not willing but I couldn’t help him.”
In the byline, there was a complaint against the CJ of Madras HC regarding his date of birth and as such was overstaying in office. So the CJI told the AP CJ that: “If I was satisfied that the complaint against the Madras CJ also was well-founded: in which case I would ask him to retire and that would cause a vacancy. I told him further that if the complaint was not well-founded, I might think of taking him to New Delhi as my colleague in the SC. In either case, there would be a vacancy in the Madras HC, and he could easily fill that vacancy. I ended up telling him: ‘It will save your mental disturbance from incessant complaints against you, and you will be able to work for the remainder of your period as CJ of a big HC in peace, amidst surroundings with which you are thoroughly familiar.’ That took me to Madras”.
“As to the transfer of the Hyderbad CJ to Madaras, difficulty was raised by the Chief Ministers of certain states and the PM was somewhat embarrassed. So far as the Madras CJ was concerned, CJ had the grace to act on his own and no problem was created. But the CJ of Hyderabad was not willing to be transferred, though constitutionally the Union Govt could transfer him. I explained to the P.M the entire circumstances: ‘Mr. PM, this is a matter in which three of us are concerned. I am concerned as the CJI, you as PM, and Dr Radhakrishnan as the President. If I am able to satisfy you both that my recommendation to transfer the CJ of Hyderabad to Madras is fully justified, then I suggest, you should accept my recommendation. Otherwise, the position of the CJI would be extremely anomalous, I am sure, you will not drive me to an embarrassing position.”
“Lal Bahadur Shastri, the Home Minister was very friendly with me. somehow, he liked me. He said: ‘No CJ, that situation will never arise. Only give me a little time to pacifiy some of the CMs.’ He then asked me to prepare a short note on the dossier of the CJI, in this matter, but not to sign it. But the dossier would be shown to the CMs who might not be familiar with all the relevant facts and who were themselves interested in maintaining the dignity and independence of the HCs’. He anticipated no opposition from them. ‘After all the facts are brought to their notice in the form of a dossier, which will go as a dossier prepared by my office, on information received from several sources, including your informal enquiry. This was done and in due course the CJ of Hyderabad was transferred to Madras.”
Reverting to the present, a precedent has been established during the past two decades. Invariably the permanent CJs of all HCs are outsiders. They were either appointed directly or transferred from elsewhere. While recommending the appointment of Justice Maheswari to Sikkim HC, the SC Collegium must have taken into consideration the precedent.
In the instant case, originally appointed a Judge of the HC of Madhya Pradesh in Nov.2005, Maheswari was appointed the Cj of AP HC in August 2019 and scheduled to retire in June 2023, on attaining superannuation, age of 62.
While recommending the transfer, the SC Collegium must have borne in mind the precedents, like the one established by Justice Gajendragadkar and the Union Govt in 1964, in the case of Justice Chandra Reddy the then CJ of HC of AP. With a sanctioned strength of 37 HC of AP is a large one. Sikkim with three judges is the smallest.
In the eye of Law the transfer may not be a punishment, but definitely one in the public eyes. Is it a signal to other CJs to behave?
It is a practice that the outgoing CJI formally recommends to the President of India to appoint the senior-most puisne Judge as his successor.
Indira Gandhi had twice violated the seniority principle. In the meanwhile, there is whispering that taking advantage of Jagan’s letter, the Union of India may supersede Justice Ramana and deny him the Chief Justiceship of India. Is Justice Mahesawri’s case an indication?
