Introduction
The transfer of Judges from one High Court to another High Court is an integral part of the administrative functioning of the judiciary under the Constitution.[1] The factor of minimising or eliminating the local influences or providing the benefit of competence in other jurisdictions justifies the provision of transfer of Judges. Besides, the consideration of transfer arises from the style or quality of work of Judges which relates to correcting or disciplining Judges. Thus, the decision to transfer a Judge attracts debate on the propriety of the decision-making process of the collegium.[2] However, it has been observed that the transfer of a Judge to the High Courts of north-eastern States has generally been viewed as a punitive decision of the collegium. Though the need to disclose the reason to transfer Judges is desirable, the “patterned” criticism of such transfers raises the question of the status of the High Courts of the north-eastern regions. In recent times, it has been observed that the transfer of the Judges to the States in the north-eastern regions is seen as a constitutional impropriety and compromising judicial independence. In the write-up, the author argues that the uproar on the issue of transfer is misplaced and dilutes the idea of a uniform judicial system envisaged under the Constitution. The paper refers to the salient process of the integration of the north-eastern regions in the country to highlight that the cultural/indigenous attributes of seven States do not confer the inferior status to the State-level judiciary. Further, it described the constitutional scheme of transfers and justifies the practice of the transfer in the interest of knowledge transfer and to eliminate local prejudices. In conclusion, it suggests that the transfer of Judges to the High Courts of the north-eastern States is in alignment with the constitutional scheme of a unified legal system.
Integration of North-Eastern States: A Glance
During the colonial period, north-eastern regions such as Assam Province, were ruled under British Empire as directly governed and excluded regions. Indigenous ethnic groups were enjoying autonomy in the excluded areas.[3] The colonial rulers followed the policy of separation and isolation for governing the north-eastern part of the country. The last Governor General, Mountbatten, decided to integrate Assam and the north-east to independent India. Arunachal Pradesh, Mizoram, Nagaland, and Meghalaya had branched out from the State of Assam. The Princely States of Manipur and Tripura also decided for a merger with India in 1949 and were admitted as specially administered regions under the control of the Central Government before getting the status of a full-fledged State. Sikkim, being a protectorate State in 1947, became a part of India as a State in 1975.[4] Under the Constitution, a part of the “tribal” regions are to be governed by the Governor of Assam as an agent of the President of India. Eight States in the north-eastern part of the country enjoy distinctiveness in governance, culture, and tradition. The historical uniqueness of these States is truly accommodated in the asymmetrical federal structure adopted by the framers of the Constitution. The demand to acknowledge the identity of the indigenous culture and to urge for more autonomy by the people of these regions led to the creation of separate States. The separate States were created to fulfil the aspiration of nationhood and to quell the separatist tendency of the political organisations of the regions. Consequently, the Sixth Schedule to the Constitution has accommodated the divergent features of the regions and granted a desirable autonomy in the matter of allotment, occupation, and use of land, management of forest, administration of justice, inheritance of property, control of money lending, trading by non-tribals, etc. The brief description of the integration process clarifies that the concessions given to the people of the region are not related to the power and functions of the High Courts of these regions.
The High Court is an important institution entrusted with the task to adjudicate legal disputes and enforcing the rights enshrined under the Constitution. The Constitution provides for a High Court in each State.[5] Though it is desirable to establish a High Court for each State, Parliament may establish a common High Court for two or more States or two or more States and a Union territory.[6]A common High Court of Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram, and Arunachal Pradesh were in existence until 2013. In March 2013, the separate High Courts in Meghalaya, Tripura, and Manipur came into being whereas Nagaland, Mizoram, and Arunachal Pradesh continue to have permanent Benches of Gauhati High Court.[7] Supposedly, the common High Court was envisaged for administrative reasons. Undisputedly, the High Court either for an individual State or more than one State conferred with the sacrosanct and honourable status, regardless of the location, under the Constitution.
The strength of the Judges in each High Court of the region may be a reason of dismay to the Judges transferred from other States.[8]Arguably, the number on the Bench relates to the administrative prowess of the Chief Justice. Perhaps, this may be a factor in not criticising the transfer to Gauhati High Court. However, the statistics on the pending cases in the High Courts do indicate enough workload for the Judges of these High Courts.[9] Also, it is to be noted that the Bar of the region has given a President to the Republic of India, and the Chief Justice from the High Courts also get elevated to the Supreme Court.[10]
Transfer of Judges of the High Court: Constitutional narrative
The Government of India Act, 1935 was having no provision on the transfer of the Judges. Consequently, the reference of the transfer was missing in the initial draft of the Constitution framed by the makers of the Constitution. The provision, presently Article 222, was introduced at the final revision stage of the draft Constitution in November 1949. Dr Ambedkar justified the provision because it would import the services of “better talent” in the Court which is not locally available and it would eliminate the influence of local politics in the justice-delivery system.[11] The idea of benefitting provinces with “better talent” on the Bench was supplemented by the argument of national integration in the Report of States Reorganisation Commission, 1955 wherein it was recommended that at least “one-third of the number of Judges in a High Court should consist of persons who are recruited from outside the Court”.[12]
The clear stipulation of the provision on transfer under the Constitution extends legitimacy to the relocation of serving Judges from one High Court to another. However, the manner of transfer has been debated on the grounds of the “consent” of the affected Judge or a measure to “penalise” the erring Judge.[13] The Supreme Court has also reaffirmed the constitutional scheme of the transfer of the Judges. It also observed that consent is not a prerequisite[14] and the primacy shall be of the collegium in the matter of transfer.[15]
If at all the transfer is to be criticised then it should be for non-transparency in recommending the transfer. The regional location of a High Court should not a reason to criticise the decision of the collegium.[16] In the pursuit to build a transparent and accountable collegium system, let there be no alienation of “the idea of India” by members of the Bench.
Summing up
Giving stigma to every transfer of a Judge to the High Courts of the north-eastern States does not augur well for the judicial system envisaged in the Constitution. The High Courts enjoy similar power in the matter of enforcement of the rights and wider power in the matter of supervisory jurisdiction over the subordinate judiciary. The Judges of the High Courts, including the Chief Justice, play a pivotal role in maintaining rule of law and upholding constitutional values. Therefore, it is expected that the Judges who are being transferred to the north-eastern States must proactively dispel the cloud of prejudices reported in all kinds of media and desist from prioritising some High Courts over the other to provide their valuable services. Having the solemn duty to defend the honour of the High Court, the Judges do have a right to know the reason for transfer from one High Court to another. The collegium must explicitly publicise the reason so that validation can be done against the intent of the makers on the constitutional scheme of promoting the administration of justice ingrained in the provision of transfer.
*Registrar and Professor, Hidayatullah National Law University, Raipur; Associate Professor of Law (on lien), Rajiv Gandhi School of Intellectual Property Law, Indian Institute of Technology Kharagpur. Author can be reached at uday@hnlu.ac.in; shankarudaymishra@gmail.com.
[1]Constitution of India, Art. 222 reads as the President may, after consultation with the Chief Justice of India, transfer a Judge from one High Court to any other High Court.
[2]Before the Second Judges’ case (Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441), the primacy in the decision related to the transfer of a High Court was of the Central Government.
[3]The excluded areas were north frontier districts, Naga Hill Districts, Lushai Districts, and North Cachar Hills Sub-division. There was a limited representative system given under the British administrative control.
[4]Kyoko Inoue, Integration of North East: The State Formation Process, <https://www.ide.go.jp/library/English/Publish/Reports/Jrp/pdf/133_3.pdf> (visited on 29-12-2021).
[5]Constitution of India, Art. 214.
[6]Constitution of India, Art. 231.
[7]There has been the demand to establish a separate High Court in the State of Nagaland (see, <https://easternmirrornagaland.com/no-infrastructure-no-nagaland-high-court-says-law-minister/>).
[8] Meghalaya High Court has three Judges including the Chief Justice; Manipur High Court has five Judges including the Chief Justice; Tripura High Court has five Judges including the Chief Justice; Gauhati High Court has 23 Judges including the Chief Justice; Kohima Bench has three Judges, Aizawl Bench has two Judges and Itanagar Bench has two Judges.
[9]Total pending cases in Manipur is 10,876; Meghalaya is 12,317; Mizoram 4969; Nagaland 2213; Assam 3,56,132; and Tripura 33,523.
[10]<http://meghalayahighcourt.nic.in/index.php/history>, Shillong Bar Association is one of the oldest Bar Associations established in 1913. A member of the Bar, F.A. Ali Ahmed served as the fifth President of India.
[11] Constituent Assembly Debates, Vol. XI.
[12] Report of States Reorganisation Commission, 1955, p. 261.
[13]A.G. Noorani, Transfer of High Court Judges, Economic and Political Weekly, Vol. 11, No. 19, pp. 685-687.
[14]Sankalchand.
[15]Supreme Court Advocates-on-Record Assn. v. Union of India, (1993)4 SCC 441; Special Reference No. 1 of 1998, In re,(1998)7 SCC 739.
[16]To indicate a few instances, Chief Justice of Madras High Court, Justice Vijaya Tahilramani, resigned after being transferred to Meghalaya High Court; criticism of transfers of Justice Akil Abdulhamid Kureshi to Tripura High Court as a Chief Justice was criticised and Chief Justice Sanjib Banerjee to Meghalaya High Court.