The issue of the transfer of Chief Justice Sanjib Banerjee from the Madras High Court to the Meghalaya High Court should not be looked upon merely as a transfer issue. It should be carried to a higher level of debate as an issue relating to independence of High Courts. Frequent transfer of High Court Judges for undisclosed reasons by the Collegium, which is not a creation of the Constitution...
The issue of the transfer of Chief Justice Sanjib Banerjee from the Madras High Court to the Meghalaya High Court should not be looked upon merely as a transfer issue. It should be carried to a higher level of debate as an issue relating to independence of High Courts. Frequent transfer of High Court Judges for undisclosed reasons by the Collegium, which is not a creation of the Constitution but only a creation of the Supreme Court, will diminish the pride and independence of High Courts.
As per the Constitutional scheme, High Courts are not subordinate to Supreme Court. They are considered as equal to the Supreme Court within their jurisdiction except as far as judicial rulings were concerned. But in reality, that appears to be no longer true.
When the High Court Judges have been bold and fearless, they have not gone without fear of transfer. The mysterious transfer of Chief Justice Sanjib Banerjee from a chartered High Court to a Court with only two Judges is looked upon by many as a punishment. It is to be noted that Chief Justice Banerjee has made several critical interventions during the second wave of pandemic and has passed strong orders calling upon the authorities to discharge their duties. Judges have been given sufficient constitutional guarantees to enable them to function independently and fearlessly. But arbitrary transfers will amount to a form of disguised punishment without any checks and balances. Such orders also pose a threat to the principles of cooperative federalism. So long as the Collegium remains opaque and reasons are not given, it will remain a great threat not only to the independence of the judiciary but also to the institution itself. The style of functioning of the Collegium calls for an immediate self-audit in the context of a people's democracy.
It should not be forgotten that it is the High Courts where the bulk of the litigation of the common man end, and the Supreme Court is beyond the reach of most ordinary persons in terms of cost and distance. Hence, it is important that High Court's maintain their independence intact. Today, more than ever, the common man looks up to the judiciary and therefore it is all the more necessary that the Collegium acts with greater transparency.
In the long lineage of the Supreme Court, it has seen heroes but at the same time, it should be noted that those heroes ultimately ended up becoming martyrs. Therefore, the present protest against Chief Justice Sanjib Banerjee's transfer should not be merely seen as an isolated protest but as a continuing struggle for the independence of the judiciary which is a sine qua non especially during these critical times.
(The authors are advocates practicing at the Madras High Court. The views are personal).