On Monday, around 50 advocates stood outside the gates of the Madras High Court, holding placards, protesting the recent recommendation of the Supreme Court Collegium to transfer the current Chief Justice of the High Court, Justice Sanjib Banerjee, to the Meghalaya High Court. The recommendation of the Supreme Court Collegium, which comprises the three senior most judges of the Supreme Court including the Chief Justice of India, has sparked a big row. Members of two advocate bodies in the Madras High Court — the Madras Bar Association as well as the Madras High Court Advocates Association (MHAA) — have issued statements and letters to the Collegium asking it to reconsider its decision. They have also said that the public needs to know why the judge’s transfer has been recommended. The Campaign for Judicial Accountability and Reform (CJAR) has said that since there is no official justification for his transfer, the only inference that can be drawn is that he is being ‘punished’ with this posting — even though this may not be an intention of the Collegium.
Justice Sanjib Banerjee’s transfer recommendation comes just 10 months after he was first appointed as the Chief Justice of the Madras High Court — which makes it a relatively short tenure. The main contention raised by the advocates bodies is that Justice Banerjee assumed office only in January 2021 and has been effectively conducting judicial administration in Tamil Nadu, so why the sudden transfer?
Was it because the judge passed multiple orders questioning the Union government and other central agencies — particularly the Election Commission? Justice Banerjee, in his short tenure, had minced no words when he held the Election Commission ‘singularly responsible’ for the COVID-19 second wave. He had said that the poll panel should be booked for murder for failing to ensure precautions during rallies. He passed orders staying provisions of the Union government’s new prized but controversial IT Rules 2021. He pulled up the Puducherry BJP over allegations of 'stealing' Aadhaar data, and had dismissed a BJP leader’s plea to allow the Justice AK Rajan panel to proceed with its report on NEET.
But there have been many transfers before this — judges get sent from one court to the other multiple times through their tenures. Advocate G Karthikeyan, who is also the Assistant Solicitor General of the Madras High Court, questioned the logic behind protesting against the transfer of Justice Banerjee alone.
“Many judges, including Chief Justices, were shifted to other High Courts in the recent past. Why was the resolution singled out in respect of CJ Banerjee alone?” he asked, speaking to news agency PTI.
There are others who agree with Advocate Karthikeyan. Another lawyer pointed out that some transfers are opposed, while others are not. “In 2004, a section of advocates protested and demanded the transfer of then Chief Justice B Subhashan Reddy because he tried to bring in a code of conduct for advocates. He was then transferred to a smaller court- the Kerala High Court. At the same time, these advocates did not object to many unjustified transfers of judges,” the advocate says.
However, as per the norm, the senior most judge of a particular High Court is sent to a court that is higher, say the Supreme Court, or a court that is equal which means it has the same strength of judges. In this case, Madras High Court and say, Bombay High Court can be considered equal. However, Justice Sanjib Banerjee was sent from a court with a sanctioned strength of 75 judges to a court with a current strength of two judges. This is not a routine transfer, says an advocate practicing in the Madras High Court.
“Only because it is something out of the ordinary, there will be a protest. If it was routine, there would have been no protests. A transfer from a larger court to a smaller court is a punishment posting,” the advocate, who wished to remain unnamed, says.
A detail that has also raised eyebrows in this whole controversy is that while the decision to recommend Justice Sanjib Banerjee’s transfer was made during a collegium meeting on September 16, the recommendation was made public only in November. Usually, such collegium decisions are published on the day of the meeting or maximum around two-three days after the decision is taken. So why the delay this time, ask advocates.
A senior lawyer who is also affiliated to a political party told TNM that he does not believe there is any proof now to believe that the collegium was wrong. “The collegium appointed him, the same collegium is transferring him out. There must be some reason why they did so,” he says. This lawyer says that there are many conspiracy theories and points to a tweet by a journalist that purportedly shows Justice Sanjib sleeping during a trial, but adds that any of this could have resulted in the Collegium’s actions. “They could have got complaints, we don’t know about it. Therefore it is not good to create such theories on the basis of speculation,” he says.
But those protesting the transfer are clear. That the Collegium system itself is not transparent and that the reasons and the rationale behind the transfer will always remain a mystery. The Collegium often does not substantiate its decisions to the public with reasons. So Collegium decisions always end up in theories and speculation, something which is happening this time too.
“The main issues are the non-transparency of the system and his transfer within the year, especially at a time when he is making so much noise against the ruling government, it is obvious then that it is the design of the ruling party and not otherwise,” one the advocates who is against the transfer says.
Writing for The Hindu, retired Justice Chandru has raised more questions. He asked why the Collegium decision was kept a secret for weeks and if the transfer was made to facilitate Justice Bhandari’s elevation as Chief Justice of the Madras High Court.
Justice Chandru further asks, “Normally when such proposals are made, a judge in the Supreme Court who comes from the State in which the transferee judge is holding office is also consulted. With regard to Justice Banerjee’s transfer, there are four judges who are qualified to be called consultee judges. Why was consultation in the case of Justice Banerjee made only with the junior-most judge of the Supreme Court and not the senior judges?”