By Asim Pandya, Senior Advocate High Court of Gujarat
The common perception of lawyers is that the newly appointed Chief Justice’s stint should start with recommending appointments of new judges which is a dire need of the time than recommending transfers of judges which usually comes last in the list of priority.
The current recommendations of the collegium have belied the expectations of the legal fraternity. Be that as it may, the recommendations of the new collegium have triggered a widescale anguish and protest in three states.
The lawyers have no other weapon in the armoury except taking recourse of a strike in absence of availability of a fullscale judicial review in the matter of transfer of a judge.
I have listened to the speeches delivered by Hon’ble Chief Justice and Hon’ble Law Minister attentively.
I am constrained to write this article to state that mere use of lofty language to justify the action of transfer and pressing the national perspective in such matters would hardly help in healing the bruised feelings of the lawyers and other stakeholders in the administration of justice.
The condemnation of the strikes by the Hon’ble speakers ignores the importance of the preservation of judicial independence, which is the sole object of the strike. If a judge discharging his duties fearlessly without favour and ill will is not protected from the onslaught of administrative machinery, it would be an end of the judicial system. It cannot be denied that in any national movement against injustice lawyers have taken a lead role.
In fact, society expects from the lawyer the role of a sentinel on qui vive to protect their fundamental rights and to question a decision which the society feels oppressive or arbitrary or not intended to serve any public purpose. A strike may halt the proceedings of courts for a day or two but a decision that jeopardizes independence of judiciary impacts administration of justice for all time to come.
It must be remembered if I may quote my friend and Senior Advocate Mr. Percy Kavina that “this is not a fight against judges or judiciary but it is for the judges and judiciary”. A noted author Oswald in his book Law of Contempt has stated “An over subservient bar would have been the greatest misfortune that may happen to the administration of justice.” Needless to clarify that Gujarat High Court Advocates’ Association (hereafter ‘the Association’) has not protested every transfer in the past. During last ten years we have seen eight to ten transfers of judges from the High Court of Gujarat but the Association has not resorted to strikes every time. We have seen that one of the judges from Gujarat High Court whose transfer was recommended by the Supreme Court collegium was not transferred for the reasons best known to the decision-making authorities. Another judge from the Gujarat High Court who was also recommended to be transferred in the same recommendations of the SC collegium obeyed the transfer order did not make his way to Supreme Court. These are just a few instances to indicate the opaqueness of the collegium system without imputing any motive to any particular judge or the institution as a whole.
At one stage the then Hon’ble Chief Justice openly declared that the judicial work from the judge concerned whose transfer was recommended would be taken away. What happened later on with regard to the transfer of the judge concerned is a question to be answered by the authorities involved in the decisionmaking process? These facts are in public domain and can be verified from the Supreme Court archives and news websites.
So, it would be inappropriate to tell common men that what is a national perspective of an issue and what is genuine public interest in such matters. Let it be clarified that Gujarat High Court Advocates’ Association does not resort to strikes casually and frequently. Hon’ble CJI said that strike was a good weapon against colonial rule and it would be an inappropriate tool in the present context in free India.
Let me state that strike is a weapon of common people against the powerful and mighty State or other establishments. When common men have no say in the decision-making process, their only tool to show displeasure or anguish against the decision is to take a non-violent path of a strike or boycott. The use of very good language by the law minister and CJI creates a camouflage and does not bring to the fore what had weighed in the matter of the transfer of Justice Nikhil Kariel, a fearless and unbiased judge. The Bar is the first and most trusted barometer to indicate the honesty and integrity of a judge.
One can easily take the shelter of an omnipotent administrative phraseology that the transfer is in the public interest of administration of justice and administrative exigencies. Whenever anyone questions a decision of the government or collegium, a standard answer would be that you common men do not know the material against the person concerned. Now one more thing is said that people at local level may not understand the national perspectives of the issue.
We could take the rout of questioning the decision of the collegium by a petition for judicial review but that would be the last option to be adopted when all other efforts fail. In a properly instituted legal proceeding the Central Government, the Supreme Court of India and the concerned high court can be asked to justify the transfer by disclosing the material that had weighed in taking a particular decision.
In independent India nobody can claim any privilege of keeping the reasons hidden in the files from public gaze. A claim of privilege by the central government of not disclosing the reasons recorded on the file was repelled by the Supreme Court in S P Gupta’s case.
It is hoped that the Association is not compelled to take the legal path of questioning the decision by filing appropriate proceeding before appropriate court.
This article is written just to state that the condemnation of the lawyers’ strike by both the dignitaries in their speeches was unwarranted as the Gujarat High Court Advocates’ Association is a most responsible Bar.
It is hoped that tomorrow’s meeting of the delegation of the Gujarat High Court Advocates’ Association with Hon’ble CJI may not turn out to be an empty formality. (The views expressed by the author do not necessarily represent those of Editor or Publisher)