"Consistent practise and transparency is lacking when it comes to transfer policy pursued by the SC Collegium"
The script remains the same; just the characters change. Last year it was Justice Jayant Patel. This time it is Justice Akil Abdulhamid Kureshi. Both judges had to face unexpected transfer orders, the reasons for which are shrouded in mystery. Both judges- belonging to Gujarat High Court originally- were known to have passed bold orders which miffed the political executive of the day. Both judges enjoyed a reputation of honesty and integrity which preceded them, without any slightest stain on their judicial character.There are many instances of mysterious workings of the collegium system, which very often appear to be in sync with the agendas of the political executive.
Justice A.A Kureshi is the second senior judge of Gujarat HC, who would have made the Acting Chief Justice of the HC following the elevation of the then CJ Subhash Reddy to SC, if not for the transfer order notified by the Centre on November 1. Following the transfer, he will take charge as the number five judge of Bombay High Court. The transfer recommendation by the SC collegium merely states the “it is in the best interests of administration of justice”. The Gujarat bar strongly feels that this is just a hogwash for extraneous reasons. The Gujarat HCAA passed a unanimous resolution condemning the transfer. They vouch for the honesty and integrity of Justice Kureshi. The unanimous Resolution terms the transfer recommendation “unwarranted, uncalled for and unjust” and states that the Bar “fails to discern any good reason for the same and believes that such transfer is unjustified and certainly has no connection withe the administration of justice”
Justice Kureshi is known to be like a judicial hermit, who goes about his business unmindful of the political consequences of his judgments. In 2010, Justice Kureshi gave custodial remand of Amit Shah to CBI in the Shorabuddin case by setting aside the order passed by a Magistrate which rejected CBI’s plea for remand. He also rejected the defence plea for videography of Shah’s questioning during the CBI custody.
His 2012 order in the case concerning appointment of Justice R A Mehta as Gujarat LokAyukta had caused huge embarrassment to the Gujarat Government. The Government opposed the Lok Ayukta appointment made by the Governor Kamla Beniwal on ground that it was made without the concurrence of Government. Justice Kureshi held that Governor was acting as an independent statutory authority under the Lok Ayukta Act, and therefore there was no requirement of seeking concurrence of Government. His colleague in the bench, Justice Sonia Gokani, dissented. Due to the split verdict, the matter was referred to a third judge- Justice V M Sahai- who concurred with the view expressed by Justice Kureshi. Taking the matter as a prestige issue, the Gujarat Government appealed before the Supreme Court, but met with no success as the top court upheld the majority judgment of High Court.
In 2016, there was an attempt to cause his recusal from hearing the appeal against the conviction of Maya Kodnani(who was a minster in the Modi government in Gujarat) and few others in the Naroda Patiya massacre case, when a senior lawyer related to Justice Kureshi entered appearance for one of the parties in the last minute and sought his recusal. “When the appearance is made by the senior advocate at late a stage, we wonder would it not have been better if the advocate had recused rather than to request the court to do so”, Justice Kureshi stated in the order of recusal. He expressed his anguish at the episode by saying “It is very painful. We will not say anything but it tarnishes the image of the institution and confidence of people… this should not have happened.”
Recently, in May 2018, a bench headed by him upheld the conviction of 19 Accused persons in the post-Godhra riots in Oad, where 23 people including women and children were burnt alive by a mob in March 2002. “These phenomena which we often describe as communal frenzy turn perfectly normal human beings momentarily into murderous monsters leaving nothing but trail of death and destruction for the victims and his own family alike”, Justice Kureshi stated in his judgment. “We have seen the senselessness of violence”, he further observed. Only a sensitive and empathetic man can express such poignancy.
His dissent in the Goolrokh Gupta case is notable for its emphasis on secularism and personal liberty. The issue is this case was whether a Parsi woman would cease to be Parsi on marrying a non-Parsi man. While the majority held that marriage of a non-Parsi would mean that the woman has renounced Parsi religion, Justice Kureshi dissented, “In a secular State and the Constitutional philosophy that we have adopted, it would be impossible to imagine that two persons belonging to different religions would not be permitted to solemnize a valid marriage unless, atleast one of them is prepared to renounce his or her religion and accept conversion.” The issue is now before the Constitution Bench of the Supreme Court.
Justice Kureshi’s fearless commitment to justice is vouched by well respected senior members of the Gujarat bar. Commenting about him, Senior Advocate Mihir Thakore told Live Law “He is independent, honest to the core and will not cow down to anyone. One we would like to have as epitome of independent judiciary”.
"Transfer of Justice Kureshi gives an extremely discomforting message to the entire judiciary in the Country . It raises disquieting questions rather than answering problems affecting the administration of justice . It would be in fitness of things if the Collegium were to recall its decision in the larger interests of the Institution", Senior Advocate Dushyant Dave told Live Law.
Several members of the Gujarat bar state that unanimity in the meeting which passed the resolution to deprecate the transfer was ‘unprecedented’. They have resolved to go on an indefinite strike to protest against the transfer. The Resolution signed by GHCAA President Senior Advocate Yatin N Oza also signified the Association’s intention to challenge the transfer proposal by way of a writ petition to be settled by five widely respected Senior Advocates Mihir Thakore, Saurabh Soparkar, Deven Parikh, Shalin Mehta and Rashesh Sanjalwala. The peeved members of the Bar share the view that Supreme Court has succumbed to the unwarranted wishes of the political executive.
The present issue is more or less a déjà vu moment of the transfer of Justice Jayant Patel. Justice Patel was transferred to Karnataka High Court from Gujarat as a puisne judge in 2016. In September 2017, he was transferred to Allahabad High Court, overlooking his seniority as per which he ought to have been elevated to the Supreme Court or appointed as Chief Justice of a High Court at least. Protesting his transfer, Justice Patel resigned from judgeship. The unjustifiable nature of the transfer order gave credence to the speculations that Justice Patel was paying the price for ordering CBI inquiry in the Ishrat Jahan case. As a senior judge of the Gujarat High Court, he had ordered CBI probe into the controversial encounter of Ishrat Jahan and three others, and monitored the case for more than six months. It was during his monitoring that the CBI filed a charge sheet in the case naming top officials of the IB and Gujarat police. His transfer was widely condemned by several senior members of the Bar and the Bar Associations of Gujarat and High Court passing resolutions against it. Senior Advocate Dushyant Dave commented that Justice Patel was victimised for not buckling under the pressure of Government.
As per the view expressed by Dr. Ambedkar in the Constituent Assembly on Article 222 of the Constitution of India, transfer of judges could be justifiable 'in order to strengthen the High Court elsewhere by importing better talents which may not be locally available’. Will this test hold good in cases of Justices Kureshi and Patel? What was the dearth of “local talent” which warranted their transfer to Bombay and Allahabad High Courts? Difficult questions to answer!.
When can a judge be transferred- Lack of clarity
Transfer of judges has always been a contentious issue, especially in view of absolute of lack of clarity regarding the circumstances which warrant transfer. Consistent practise and transparency is lacking when it comes to transfer policy pursued by the SC Collegium.
In 2016, Justice Rajiv Shakdher- a judge of impeccable character and knowledge- was transferred from Delhi High Court to Madras High Court, in a move which raised a lot of eyebrows. No one still knows the exact reasons which prompted the decision. Certain decisions of Justice Shakdher were bold- like the one which struck down SC policy to appoint Law Clerks only from National Law Schools and also the one which quashed the look out notice against Greenpeace activist Priya Pillai. His transfer invited sharp criticism from several senior members of the bar. Lawyers including former Attorney General for India Soli Sorabjee, Jurists Fali Nariman and K.K. Venugopal had, in fact, written to the then Chief Justice of India T.S. Thakur, seeking a review of the decision. In January 2018, he was transferred back to Delhi High Court.
The consistent view expressed in several SC judgments is that transfer should not be a punishment in disguise and should be made only in ‘public interest’. However, transfer is widely perceived as a punitive measure. At one point of time, there was a consistent practise of transferring judges who are deemed errant to farther places like the North East. For example, in 20101 Justice P D Dinkaran was transferred from Karnataka to Sikkim in the face of corruption allegations. Later, Bar Associations of North Eastern states voiced their protest against this practise.
What emerges from the above is that there is no stable and sound policy to guide judicial transfers. The vague justification of ‘public interest’ most often hides the real reasons behind transfer. What is meant by transfers in 'public interest'? How do we distinguish a transfer in 'public interest' from a transfer by way of 'punishment'? These questions are not of easy solution. The Court has not clearly answered these questions.
There has been raging debate in the judiciary on the point whether consent of the judge should be necessary before his transfer. The majority opinion in Sankal Chand and S P Gupta cases was that transfer need not be based on consent on the ground that Article 222 does not speak of it. But the majority view was strongly questioned by minority opinions delivered by Justice P N Bhagwati and Justice Untwalia, which held that it was necessary to read transfer as ‘consensual transfer’ to protect judicial independence. “If Article 222(1) is interpreted to mean non-consensual transfer too this power of the executive would become a dangerous power, because the executive would then have an unbridled charter to inflict injury on a High Court judge by transferring him from the High Court to which he originally agreed to be appointed to another High Court if he decides cases against the government or delivers judgments which do not meet with the approval of the executive. That would gravely under- mine the independence of the judiciary”- expressed Justice Bhagwati's spirited dissent in Sankal Chand. He also expressed similar dissent in the S P Gupta case, popularly known as the First Judges case.
“It may be few and far between but to do so without the consent of the judge concerned will bring devastating results and cause damage to the tower of judiciary and erosion of its independence.”, expressed Justice Untwalia.
However, the later decisions in Second and Third Judges cases also ruled out against consensual transfer. A close study of these cases would reveal that the Supreme Court has failed to bring out the clear distinction between the transfers by punishment and transfers in public interest. Public interest is an expression not capable of any precise definition and in a given set of circumstances may be applied differently by different people.
One of the greatest lawyers Nani Palkhiwala, after examining the Judges' case, pointed out that the dichotomy was not between transfer in public interest and transfer by punishment, but the dichotomy was between transfer in' public interest and transfers for extraneous considerations’. According to him, the object of the transfer and not the result, or effect ,of the transfer is the decisive factor.
It now appears from the manner in which power of transfer has been used, especially in the recent past, that Justices Bhagwati, Justice Untwalia and Senior Advocate Nani Palkhiwala were prophetic in their concerns.
The constitutional provision on transfer of judges has a direct and proximate connection with the independence of the judiciary. If the judiciary loses its independence and becomes subservient, the net result would be that the Constitution will lose its prominence. Justice Khanna has aptly put it like this:
"Once the independence of the judiciary is undermined and the seats of Justice came to be occupied by men with `pliable conscience' and subservient to the political wing of the State, the first casuality would necessarily be the supremacy of the Constitution, for it would be open to every branch of the State to ride roughshod over the provisions of the Constitution”.
The unfortunate fact is that despite the Collegium wresting the power to transfer from the executive, it does not seem to be completely insulated from political pressures. Probably, it is time to revisit the opinions of Justice Bhagwati and Untwalia regarding consensual transfers and rethink the policy imbibing the concerns expressed by them.
 N. A. Palkhiwala, "Transferring Those Who Err" (The Judges Case - 11),Indian Express, February 4, 1982
 Khanna, "Don't Demoralise the Judiciary' (1982) 5(1) Cornnzercial Law' Gazett