We feel it is a penal transfer: Senior Advocate Mihir Thakore on proposed transfer of Justice Nikhil Kariel to Patna

A person who is independent, not influenced by anybody or by monetary considerations, is being punished, Thakore says on the Collegium's move to transfer Justice Kariel.
Mihir Thakore
Mihir Thakore

Over the past couple of days, members of the Gujarat Bar have been in up in arms over the Supreme Court Collegium's proposal to transfer Justice Nikhil S Kariel from the Gujarat High Court to the Patna High Court.

On Friday, Chief Justice of India DY Chandrachud agreed to meet with a delegation of the protesting lawyers to address the furore that resulted in en masse abstention from work at the High Court.

Veteran lawyer from the State and Senior Advocate Mihir Thakore, who will likely be part of this delegation, called it a “penal transfer,” an issue that he and other Bar members plan to raise before the CJI when they potentially meet this Saturday. 

Thakore had also appeared before the Bench of the Chief Justice on Thursday and said,

"With the transfer of Justice Kariel, there has been a death of independence of judiciary. We are here to observe two minutes silence for the same."

Edited excerpts of Bar & Bench's interview with Thakore follow.

Why are lawyers protesting?

Mihir Thakore (MT): We are not able to understand the reasons why he is being transferred. As members of the Bar, we know the pulse. To the Bar, the judge is independent and clean. There is nothing which will indicate that he is not a balanced judge. And if he is a balanced judge, there is nothing which creates any doubt in him. Why should he be transferred to any other place? The Bar is agitated and anguished by the fact that a person who is independent, not influenced by anybody, not influenced by monetary considerations also, is being punished by being transferred to Patna.

So you see this transfer as a “punishment”?

MT: There are no transfers other than punishment transfers. On principle, no judge is being transferred. So it becomes a penal transfer. [There has to be] Something against him, to transfer him. How can a person get transferred? There is no policy. There can be a policy that one-third of the judges should be transferred. Once, there was such a policy, but that policy is not existing. Once that policy is not existing, there has to be some premise on which a person is being transferred. There has to be something on record, some observation.

Why is Justice Kariel getting so much support?

MT: Because he is independent. That’s the only basis for this support. Otherwise he may not have got it.

Any highlight from your experience of having appeared before him?

MT: Whenever I have appeared before him, I have never felt that he has been cowed down or anything for any reason.

What is the next step of the Bar?

MT: The CJI gave us appointment at 1:30 today. But it would be impossible to reach Delhi by then. Yesterday, we sought appointment and we got it at 1:30 PM. We requested for a virtual appointment at 1:30 PM. They said, 'no, you can come tomorrow then'. When the time comes, we will go tomorrow. 

What are you going to present in the meeting?

MT: We are going to say that we feel this is a penal transfer. Whatever justification you have doesn’t appear to be correct for this transfer. Passing orders in favour or against one person which are reversed is no reason to shift someone to Patna or Kerala for that matter. If a higher forum finds that a lower court has erred, then you correct it. That is no reason to transfer a person. There is nothing like perfection in the judicial system. No judge is perfect. 

High Court lawyers are on indefinite strike. Doesn't this call negatively affect case pendency and the interests of litigants?

MT: My simple answer is that undoubtedly it will affect the pending cases - marginally, not majorly. In any event, what is the objective of a judicial system? Integrity and honesty. If that itself is at stake, what is point of arguing citizens are suffering?

Some edits have been made post publication of the interview.

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