NEW DELHI, India: The Chief Justice of the Supreme Court of India, Mr. RS. Pathak, has opposed the transfer of the Chief Justice of a High Court without his prior consent. His stand nullifies the policy of the Government of India to transfer the Chief Justices of High Courts to the other states without the prior consent of the Chief Justice of India. In the last few years, even those Chief Justices who were to retire within two years could not escape from the process of implementation of the policy. This point came up for the opinion of the Chief Justice of India when the. Government wanted to transfer Justice Rajeshwar Dayal from Delhi High Court on the simple plea that he has been raised to the present status from the same bench. This issue was brought to the notice of Chief Justice of India when the Central government sought the consent of Justice Dayal on this proposal. It is learnt that Mr. Shivshankar, the Law Minister of India and the Chief Justice exchanged many letters on the subject, but could not reach any agreement. The issue of the transfer of Chief Justice of Patna High Court is also clubbed with the transfer of Justice Dayal, as both have been elevated to this status from the benches of the same high courts.

The practice of transferring the Chief Justices and Judges from one high court to another was initiated by Indira Gandhi when she lost her election petition in Allahabad High Court in 1976.

When Mrs. Gandhi, again came to power in 1980, the judiciary offered its neck on the block. The majority judgment by a bench, headed by Justice P.N. Bhagwati who had earlier congratulated Mrs. Gandhi on her return to power through a letter, which shocked many in the country, upheld the right of the government of India to transfer the chief justices without the prior approval of Chief Justice of India. This judgment came on the appeal of a chief justice on the matter of transfer or appointment. With this sword hanging on their heads, not many judges had shown the courage to 0 against the dictates or wishes of the government or to pronounce the judgment without the fear of the executive. Since Justice Bhawati took over as Chief Justice of India the government succeeded in its mission.

Most of the judges have become so afraid of transfers that they do not consider it discreet to annoy the government on the basis of their judgments.

Article extracted from this publication >> January 8, 1988

Article extracted from this publication >>