The silent whispers

The corridors at the High Court of Delhi have been buzzing with questions. This is not a bad thing, for those are exactly the sounds one wants to hear in a temple of justice. Only this time, the questions are not related to judicial interpretation or matters of law.

In recent weeks, six judges from across India have been transferred to Delhi. The Collegium of the Supreme Court of India has also notified the transfer of three more judges to Delhi and this now awaits confirmation from the Central government. The Bar in Delhi and surely the Bench welcomed all transferee judges. After all, we must live up to the tag that “Dil Walo Ki Hain Dilli.” One recognises that our Constitution provides for the transfer of a judge from one High Court to another. So, no issues on that count.

But the Constitution does not prescribe reasons to be detailed for such transfers. That decision vests solely with the Collegium, and one is confident that the decision taken by the senior-most judges of our highest judiciary would surely be backed by a reasoned explanation, be based on fairness and taken with a view that enhances public trust. Why, then, are the reasons not shared with the Bar? Why not just make the process transparent and douse all conjectures?

Close on the heels of the transfers to Delhi has now come the news of the transfer of two judges from Delhi. To most at the Bar, this came as a shock, for there isn’t anything routine about it. Once again, one expects that this decision too is supported by evidence and is backed by sufficient material that prevents any kind of arbitrariness. But since the reasons are shrouded in secrecy, there is an uncomfortable chatter at the Bar.

One is not questioning the judicial and administrative wisdom of our supreme judicial authority. Yet, as equal stakeholders, lawyers practicing in a court form an integral part of its institutional framework. Which is why the Bar is termed as the mother of the Bench; for those who adorn the highchair have mostly risen from the Bar. There exists a mutual symbiotic relationship, where both benefit from interacting with one another and both are dependent on each other. Hence, members of the Bar are only wondering why the reasons for these transfers in and out of Delhi can't be shared. If the reasons will affect the reputation of a particular judge, then the Bar has all the more right to know. And if it won’t, then surely sharing the reasons will actually help in our collective cause of justice.

The edifice of our judicial institutions is based on the consumers of justice respecting our courts and fearing consequences for non-compliance with court directives. The speculation which now envelops the Delhi High Court doesn't bode well for it and is eroding its credibility. The frequent changes in roster, disruptions resulting in dates being given after several months, some part-heard matters being released after extensive arguments and others being heard afresh by a new bench, are all adding to the judicial delays and woes for litigants. At many levels, these issues affect not just the local lawyers and the litigants, but the entire nation. As has been said, “all citizens are vitally interested in an unpolluted stream of justice.” 

Jurist Nani Palkhivala writes in his article titled The Judiciary and the Legal Profession,

“Justice and the rule of law are perhaps two of the noblest of concepts evolved by the wit of man. The Romans regarded justice as a goddess, impartial, impassive and unshaken. Ancient Indian culture pays a similar tribute to dispensers of justice.”

Which brings us back to the core issue here – why have nine judges been transferred to Delhi and why are two judges suddenly being shunted out? 

The transfers to Delhi have completely altered the seniority and ranking of many of our local Delhi Judges, which is a matter of some concern. It is to be expected that judges too have career aspirations, goals and must evaluate their professional trajectory when accepting the coveted constitutional post. Surely, they are mindful that things can change and a curveball can get pitched at times. But one can only imagine that when their career graph starts looking like a game of snakes and ladders, it must demoralise them. Thus, if the objective for the transfers to Delhi was to fill up the vacancies here, we surely have enough and more candidates who are worthy of the post. If it was on account of administrative compulsions, then what are those?

There is some amount of dismay within the Bench as well and while convention may prevent them from voicing their concerns, we members of the Bar can act as the intermediary to share the collective displeasure with the change in hierarchy. One can imagine that the local Bar, from where the transferee Judges have been shifted, would also have expressed similar disappointment when one of theirs was sent away.  

There is no gainsaying that local appointees are aware of local issues, have a pulse of the social fabric of the state to which their court caters and are also well acquainted with the functioning of the local Bar and the dynamics that exist within it. This is not to say that a transferee judge will not be able to quickly get a feel for these matters, or that they are in any way lesser than any local appointee. On the contrary, sometimes a transferee judge can bring a fresh perspective and help add to the diversity of a court. But we also need to bear in mind that despite the Constitution providing for the transfer of judges, those who give their consent to be elevated don’t do so to be shifted to a different court. They also have families: partners, children, ageing parents and other responsibilities in the city of their domicile. Unlike the civil services, which has an all-India cadre system, appointments to the High Courts are local appointments and not part of any all-India judicial service.

In the words of GK Chesterton,

“What we need are lawyers who are prepared to stand as the sentinels of democracy, as standard-bearers of the public cause they believe in.”

Today, the cause to stand up for is the transfer and shuffling of judges and the Bar not being taken into confidence on the reasons for the same. The objective behind this is not to quell some innate curiosity or guard any supposed turf, but, as equal stakeholders in the administration of justice, to have a voice and at the very least know why particular actions are taken.

The silent whispers going around our temple of justice are doing no one any good. The surest way to stop them is by engaging with the local Bar. Or else, the whispers are likely to become louder and louder, to sound like temple bells.

Satvik Varma is a Senior Advocate based in New Delhi practicing primarily at the High Court of Delhi.