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Transferring judges not a solution, Justice DY Chandrachud
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Transferring judges not a solution, Justice DY Chandrachud

Shruti Mahajan

Transferring high court judges when complaints crop up against them is not an effective solution, Justice DY Chandrachud of the Supreme Court said on Tuesday.

In the context of the present procedure to address complaints of misconduct against judges, Justice Chandrachud said that the Constitution provides for impeachment or transfer of a judge, but neither works.

“Our Constitution speaks of two possibilities. One, impeach the judge for wrongful behaviour and second, which is usually exercised when you have a problem with a judge, is transfer that judge. Impeachment is not necessarily an answer in every situation you can think of regarding judicial demeanour. Similarly, transferring a judge is no solution, for a judge who has a problem in a place where she or he is posted.”

Justice DY Chandrachud was speaking at the launch of the book How to Save a Constitutional Democracy by Professor Tom Ginsburg and Aziz Z Huq at the University of Chicago’s Delhi Centre. While addressing the issue of accountability and misconduct of judges, he said that a more nuanced and balanced mechanism needs to be devised to make judges more accountable.

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These remarks come at a time when the Supreme Court and its Collegium is facing criticism in the wake of Justice VK Tahilramani’s resignation on account of her transfer to the Meghalaya High Court. While various quarters were critical of the Collegium for not reconsidering Justice Tahilramani’s request against her transfer, the Collegium maintained that it had cogent reasons for its decision, while keeping the same reasons under wraps.

In a Constitutional democracy, however, you need to trust your judges, Justice Chandrachud opined. He also acknowledged that the Judiciary and the judges are constantly under attack, largely from “citizen journalists” on social media, for every decision taken. While citizens have the space to express their opinion, it is the judges who find themselves without a platform to respond to the allegations. He added,

“In the name of securing the accountability from courts, you need to understand that you need to trust your judges and you need to trust your courts because if that element of trust from the courts disappears, then you have a serious problem in the democratic setup itself.”

On striking a balance between accountability and independence of the Judiciary, Justice Chandrachud said,

Independence of the Judiciary is not a concept that was meant to isolate the Judiciary from being accountable… It is to insulate the Judiciary from wanton attacks on the institution.”

Senior Counsel Arvind Datar was also on the panel with Justice Chandrachud and Ginsburg. He also spoke on the role of the Judiciary in a constitutional democracy, and called the Indian Judiciary the “bulwark of freedoms and liberties”.

“In my opinion, the Judiciary will ultimately save democracy,” Datar said

(L-R) Senior Advocate Arvind Datar, Justice DY Chandrachud, Professor Tom Ginsburg and Payal Chawla
(L-R) Senior Advocate Arvind Datar, Justice DY Chandrachud, Professor Tom Ginsburg and Payal Chawla

Citing yesterday’s judgment of the UK Supreme Court ruling that the decision of the Prime Minister to prorogue the Parliament as unlawful, Datar said that courts are the only place to challenge the decisions of the Legislature and the Executive. Owing to the federal structure and the system of parliamentary democracy, governments are pulled to make certain decisions with little or no debate on them in Parliament, he further said.

“…the only checks and balances in India are by the Judiciary… In all this, the only bulwark of freedoms and liberty is the Judiciary.”

The panel discussion was moderated by Founder of JusContractus Payal Chawla.