Madras High Court Chief Justice Vijaya Kamlesh Tahilramani on Saturday resigned over the Supreme Court collegium’s orders to transfer her to the Meghalaya High Court, “in the interest of better administration of justice.” The collegium had rejected her appeal asking for reconsideration of the transfer. Justice AK Mittal, Chief Justice of Meghalaya High Court, was recommended to take her place as the Madras High Court Chief Justice. The collegium’s decision had raised eyebrows since Justice Tahilramani was being moved from a court with a sanctioned strength of 75 judges to a smaller court with just three judges. Moreover, Justice AK Mittal is two years her junior when it comes to seniority.

Over the past few years, there have been many instances where judicial appointments and elevations, usually made on the basis of seniority, were made on a collegium decision that seemed random and arbitrary. Earlier in January, the Supreme Court collegium’s decision to elevate Karnataka High Court Chief Justice Dinesh Maheshwari and Delhi High Court judge Justice Sanjiv Khanna to the Supreme Court was embroiled in controversy. The latter was elevated to the Supreme Court after superseding as many as 32 judges. Several former judges had written to the Supreme Court voicing their concern over the collegium’s decision. 

In 2017, Justice Jayant Patel resigned from judgeship after he was transferred to Karnataka High Court from Gujarat and then to Allahabad High Court, when according to seniority, he was supposed to either have been elevated to the Supreme Court or appointed as a Chief Justice of a high court. 

The process of judge transfers

When it comes to judicial appointments, the Supreme Court collegium has the last word. The Supreme Court Collegium is a committee comprising the senior-most judges of the Supreme Court that appoints judges to the country’s courts. 

TNM spoke to retired Justice K Chandru, who explained the process behind judicial transfers from one high court to another.  

“Though the selection process is made for each high court by a collegium and later appointed by the President of India under Article 222 of the Constitution, they are liable to be transferred to another high court,” Justice Chandru says. “The transfers of judges and the appointment of Chief Justice is done by the three-judge collegium of the Supreme Court, including the Chief Justice of India. They need not take any input from the government in case of mere transfer of judges. But in case of appointment as Chief Justice, then the consultation of that particular state government may be necessary.”

There was a time during the 1990s, he says, that it was decided to have one-third of the total number of judges drawn from outside the state. In that process, a number of judges were transferred from one state to another state. Subsequently, the rule was done away with. 

“However, the policy of having a Chief Justice drawn from some other state continues, with the rider that the judge who comes from outside that state to be appointed as the Chief Justice will be senior to the judge who is the senior-most in that particular high court. Since normally this creates problem of locating high courts, the senior most judge of that high court (called as J1) is disturbed and transferred to some other state, where he may lose or may not lose his seniority in that transferred state,” Justice Chandru explains.

Putting the current controversy into context, Justice Chandru says that since many of the high courts in the north-eastern states in India were formed recently and the judges who are appointed from the very same state will have very little seniority, they may not be appointed as a Chief Justice in another state, because there will be more seniors to them in those states.

“Even from Madras High Court, Justices Jayapal, Rajaelango, Kannan and Muralidaran, were all transferred to other states, such as Punjab and Haryana, Andhra Pradesh, Kolkata and Manipur, respectively. In the case of the Justice Muralidaran, he went from a chartered high court of 75 judges to a high court which has only 3 judges.” 

“Like this, many judges from different high courts were transferred without assigning any reason. Even though there was no allegation against Justice Kannan, he was transferred to Punjab and served his full term. His transfer came after certain political parties had opposed the appointment of one more Brahmin judge in the Madras High Court by certain political parties and their request was obliged by the then Chief Justice of India K Balakrishnan (in 2008),” Justice Chandru says. 

There have been many instances where judges have been sent to high courts in certain states that have fewer judges, but there have not been protests at the time. 

“Nobody questions the appointment of AK Mittal to Meghalaya from Punjab and Haryana High Court where he was originally appointed. Punjab and Haryana High Court also has a sanctioned strength of 75 judges and Mittal was transferred to a court (Meghalaya) with the sanctioned strength of 3 judges. Similarly, when the present Chief Justice of Manipur High Court R Sudhakar, who was the Chief Justice of Jammu and Kashmir High Court, was transferred to Manipur (which has only 3 judges), there was no protest,” he says.

In fact, most of the senior judges of the Madras High Court (a Chartered High Court) were always appointed to high courts in states like Kerala, Karnataka, Andhra Pradesh, Gujarat, Rajasthan, Jharkhand, Chhattisgarh and Odisha but they were never appointed as Chief Justices of Bombay, Madhya Pradesh, Allahabad or Kolkata High Courts. 

“No one ever explains these vagaries in the decision-making process,” Justice Chandru adds. 

In the case of Justice Tahilramani, her 2017 judgement – as the part of a division bench of the Bombay High Court – upholding the life imprisonment of 11 convicts in the gang rape of Bilkis Bano and the murder of her family during the 2002 Gujarat riots has been cited in almost all reports.

“In the case of Madras High Court Chief Justice, unless the collegium reveals the real reason, we will only be having a guessing game. It must be noted that while the decision of her transfer was made by the collegium consisting of senior judges, her reconsideration of the application was rejected. Therefore, in the absence of any malafides being attributed, one cannot presume it was victimization especially when the government has no role in the transfer of judges,” Justice Chandru says.

He, however, adds that since the Supreme Court invented the collegium system – and the collegium’s decisions are often kept secret – there have been many allegations against the collegium's style of functioning.

The three judges case vs the NJAC

The three judges case is a combined collection of three judgements of the Supreme Court which forms the bases of the collegium system through which appointments are made. Over the course of the three judgements, the Supreme Court established that judicial independence – that the executive and legislature will not have a say in the appointment of judges – and that a collegium system, comprising of the apex court’s senior most judges will decide on judicial appointments. 

“It is not a cohesive body having constant form, due to retirement there is always a change in their composition,” Justice Chandru explains. 

In 2014, the Union Government passed a law, the National Judicial Appointments Commission (NJAC) Act, to amend the collegium system so that the executive too has a say in the judicial appointments in the country. However, the Supreme Court, which has not been keen on the executive’s interference and has mentioned so in previous judgements, struck it down in 2015. The two-decade-old collegium system continues to make the decisions on appointments.

“The only way out is to have a regular judicial appointments commission with broader representations and effective consultation process,” Justice Chandru says.