A wrong signal

There appears little administrative compulsion to warrant the transfer of Uttarakhand Chief Justice KM Joseph to Andhra Pradesh and Telangana. He is the only Chief Justice who has been transferred; the three others have been elevated to the apex court along with a lawyer. Naturally, different meanings will be read in the collegium action. On April 21 a Division Bench headed by Chief Justice Joseph had quashed President’s rule in Uttarakhand, bringing to naught the designs of the ruling party at the Centre to topple an elected government. The judgment, which was widely hailed, embarrassed the Modi government. Justice Joseph applied the Supreme Court remedy prescribed in such situations: a floor test to decide whether a government enjoys the confidence of the House or not.  He was, however, vocal, unguarded and unsparing in his comments. “At times, the President too could go wrong,” he asserted, but only in response to the claim that the President had weighed all options before imposing Central rule in the hill state. 

If within a fortnight of this judgment Chief Justice Joseph is transferred, what conclusion can be drawn other than what eminent lawyer Indira Jaisingh has done: “Why are judges who write judgments against the government at the Centre being transferred?” In January 2016 the collegium had transferred Justice Vineet Saran of the Allahabad High Court to Karnataka even though two Supreme Court judges had objected to his transfer. There were allegations of a lobby at work. The transfer of Justice Rajiv Shakdher of the Delhi High Court had also led to a controversy.

That there are flaws in the collegium system was accepted, among others, by the Constitution Bench which heard the NJAC (National Judicial Appointments Commission) case. It suggested that the executive could supplement the existing Memorandum of Procedures (MOP) in consultation with the CJI. This means the new appointments and transfers are being made under the old system with an unchanged MOP. The inexplicable decision to transfer Justice Joseph out of Uttarakhand does not enhance the citizens’ faith in the higher judiciary’s role as a watchdog of constitutional equilibrium.