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Will the Collegium succumb? Centre returns transfer files of two High Court judges

Murali Krishnan

An interesting news greeted me today morning – something which has been a subject of discussion in the Supreme Court and two prominent High Courts of the country for more than a year now.

The news published by The Indian Express today states that the Central government has returned the files, relating to the transfer of Justice Valmiki Mehta of Delhi High Court and Justice MR Shah of Gujarat High Court, to the Supreme Court Collegium.

The transfer or rather the reluctance of the Centre to transfer these two judges was a source of constant friction between the Central government and the previous Chief Justice of India, TS Thakur. To quote from the report in Indian Express,

“Sources told The Indian Express that senior government functionaries have indicated to the Supreme Court that the government is not inclined to process the recommendations as sought by the earlier collegium. There are indications that the Supreme Court collegium may transfer Justice Mehta to a court nearer Delhi. Justice Mehta is related through his son’s marriage to a senior Supreme Court Judge Ranjan Gogoi, who is in line to become CJI in 2018.

As for Justice Shah, currently the seniormost Judge of the Gujarat HC after the CJ, the government feels that he should continue there until the time he is appointed CJ of a HC, which, if seniority is followed, could take at least one more year since there is at least one judge from the same high court senior to him.”

This move by the Centre reiterating its refusal to transfer these two judges means that the Collegium headed by the new Chief Justice, Justice JS Khehar will now be tasked with taking a decision on the same.

Some background

Justice MR Shah is the second senior-most judge of Gujarat High Court while Justice Valmiki Mehta is a sitting judge of Delhi High Court.

The news about transfer of Justice MR Shah came into prominence in April 2016 after Senior Advocate Yatin Oza wrote two letters, which were published by Bar & Bench.

Oza had written to the Chief Justice of India alleging that Justice Shah’s transfer was stalled by the executive due to his “proximity to 1, Akbar road New Delhi and 7, Race Course Road New Delhi.”

One of those letters stated that Justice Shah’s transfer was first recommended by a Collegium headed by former Chief Justice HL Dattu but the Centre was holding up the same due to the alleged proximity of Shah J. with the ruling dispensation. These letters had later led to a contempt of court case against against Oza, which eventually ended with Oza tendering an apology.

Stall on Justice Mehta’ s transfer came to fore after another judge, Justice Rajiv Shakdher, who was also serving in Delhi High Court was transferred to Madras High Court. Justices Mehta’s transfer was recommended by the Collegium along with Justice Shakdher’s in February 2016. While Justice Shakdher’s transfer was approved in April the same year despite protests by the Bar, Justice Mehta’s transfer is yet to get the nod from the Central government.

CJI TS Thakur

Ex-CJI, TS Thakur was the sore in the eye for the Union government during his tenure at the helm. One of the major reasons for that was his refusal to budge when it came to judicial appointments. This resulted in a major stand-off between the Centre and the Supreme Court with appointments to different High Courts coming to a standstill.

One major episode which stood out during Justice Thakur’s tenure was his warning to the Central government that the Supreme Court will consider withdrawing judicial work from Justices Valmiki Mehta and MR Shah if their transfers were not given effect to.

“Recommendations for transfer of Justice M R Shah from Gujarat High Court and Justice Valmiki Mehta from Delhi High Court were sent in February and March. These have not been given effect to. If this is the approach of the Union government, then we would have no option but to withdraw judicial work from these transferred Judges”, he had said.

This rare outburst had happened in August last year during the hearing of a petition filed by one Anil Kabotra praying that the appointment of judges to High Courts be expedited. Subsequently, the Court had chided the Centre many times for failing to clear the files sent to it. During one such instance, Justice Thakur had even threatened to summon officials from the Prime Minister’s Office.

Adding fuel to the fire, a lawyer from Gujarat High Court approached the Supreme Court against what he alleged to be “stall of transfer of Justice MR Shah”. Yatin Oza once again came into picture when he along with Ram Jethmalani appeared for the petitioner. Oza made some scathing submissions against the Centre’s high-handedness.

“Things are really bad.  I cannot say a lot of things in open court in the presence of journalists. Recommendations which were made six months after [Shah J.’s recommendation] have gone through. It is lying on the same table since February 2016.

It is a deliberate attempt to stall the transfer [of Justice Shah]. Gujarat judiciary has virtually gone to the (unclear). I am restraining myself because of the media”, Oza stated in open court.

Despite all these, the Centre managed to successfully hold CJI Thakur at bay till his retirement on January 3, 2017.

CJI Khehar’s Collegium

It was in such testing circumstances that Justice JS Khehar took over the Collegium. A week into his tenure, the new CJI remarked in open court that the vacancies in Supreme Court would be filled up within a month. The Supreme Court was functioning with 23 judges then as against the sanctioned strength of 31.

The CJI did make some genuine progress as five new judges were appointed to the Supreme Court.

Some (serious) allegations

However, two major incidents would proceed to cast a shadow over the apex court and the Chief Justice of India.

The first was the listing of Sahara-Birla diaries case before a Bench presided by Justice Arun Mishra, who heard and dismissed the case but the petitioner’s lawyer, Prashant Bhushan and Senior Advocate Dushyant Dave have been heavily critical of the judgment. Dave has sought a recall of the judgment since Justice Mishra is alleged to be close to one of politicians whose name figures in the Sahara-Birla diaries.

Subsequently, the damning suicide note of former Arunachal Chief Minister Kalikho Pul came to light. This note contained allegations of corruption against two senior sitting judges of the Supreme Court.

The request made by Pul’s wife to Justice Khehar to grant permission for an enquiry should have been dealt with by the CJI on the administrative side. Instead he chose to list the case on the judicial side, giving ground for further allegations

Now what?

The transfer of Justices MR Shah and Valmiki Mehta is something which the earlier Collegium had vehemently tried to push. In fact, the Collegium in the current Constitutional scheme of things has a final say in the same. After the Second judges case, the opinion rendered by Chief Justice of India is final when it comes to judges appointments and the Centre is bound to comply with the same.

Whether the Collegium would succumb to the relentlessness of the Executive regarding these two transfers, we will soon know.

Image courtesy: Supreme Court Annual Report

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