Chief Justice of the Madras High Court, Justice Vijaya Kamlesh Tahilramani, has been unusually transferred to Meghalaya High Court.

What is wrong with the transfer?
While the Constitution does provide for such transfers from one high court to another, it is extremely rare that the senior-most Chief Justice in the country is shifted from a large court with a complement of 75 judges to one of the newest courts, which has a strength of only three judges. It is no surprise, therefore, that the judge, who entered the superior judiciary in 2001, and is the senior-most high court judge in the country, chose to resign, rather than continue in circumstances bordering on humiliation.

Flaws in collegium system
It is unfortunate that the collegium rejected her request for reconsideration without assigning a reason. It is easy to argue that one high court is as good as any other, that such transfers should not be seen as a ‘demotion’, and that the Chief Justice of India (CJI) should be free to transfer the head of any high court in the interest of “better administration of justice”.

However, it is a fallacious argument when one considers that there are no known complaints about her performance or any public controversy around her judicial or personal conduct. It is possible that the transfer is based on an internal performance assessment, or complaints not available in the public domain. However, in the absence of any explanation, the transfer seems to be punitive. If it is performance-related, a question arises as to whether all judges are being assessed on the same criteria.

Method of transfer
Judicial transfers are initiated solely at the instance of the CJI. The Memorandum of Procedure relating to appointments and transfers of high court judges says the opinion of the Chief Justice in this regard “is determinative”. And in the case of a Chief Justice of a High Court, the CJI needs to take into account, “only the views of one or more knowledgeable Supreme Court Judges” while proposing a transfer. In the Second and Third Judges cases, the Supreme Court felt that the fact that the proposal is initiated by the CJI and recommended by a plurality of judges is enough as a safeguard against arbitrary transfers.

However, the Tahilramani controversy shows that the systemic faults of the collegium system — opaqueness and the scope for personal opinions colouring decision-making — remain unaddressed.

Source: The Hindu