The judgment of the Supreme Court in the highly publicized transfer of judges case is best summed up by a well-worn cliché. The mountain was in labour but has produced only a mouse. For on one of the two vital issues before it, it has done no more than confirmed the status quo ante. In fact, it will not be unfair to say that it has confused the issue. It may be recalled that during the emergency in 1975, the government had ordered the transfer of Mr. Justice Sakhal Chand Seth from the Gujarat High Court to Andhra High Court. Mr. Seth challenged the order in the Gujarat High Court which held it to be mala fide. The government went in appeal to the Supreme Court. By a three-to-two majority, the Supreme Court reversed the ruling of the Gujarat High Court. It held that the consent of the concerned judge for purposes of transfer could not be read into Article 222 of the Constitution. But it said that judges should be transferred only in special cases; and that there must be full consultations with the Chief Justice of India before a transfer order is issued. The Supreme Court has now more or less confirmed this judgment in respect of the transfer of judges.
This by itself is unexceptionable regardless of whether one takes the view that the verdict has hurt or promoted the cause of the independence of the judiciary. But it must be a cause for serious concern that the majority on substantive issues before the seven-member bench consists of different judges. This demonstrates how seriously the country top court has been divided on the question of the rights of the government versus the judiciary. This is, of course, not a new development. The Supreme Court has been badly divided before. There was, for instance, a majority of only one in the case of the crucial decision whereby the court held that the Constitution has a basic structure and that Parliament cannot alter this basic structure. But as the debate in the country on the question of the independence of the judiciary as the bulwark of the liberties of citizens has sharpened, such a display of disagreement in the land’s highest court cannot possibly enhance the reputation of the judiciary as a whole. Laymen are also bound to be surprised that Mr. Justice Bhagwati should have held in effect that the opinion of the Chief Justice of India does not have primacy over the views of the Chief Justice of the High Court concerned. This issue arose because while the Chief Justice of the Delhi High Court had written to the Union law minister that Mr. SN Kumar, additional judge, did not deserve to be confirmed, the Chief Justice of India had held that he was fit to be confirmed. We also find ourselves in disagreement with another of Mr. Bhagwati’s observations suggesting the setting up of a judicial commission to consider all judicial appointments if it implies, as it apparently docs, that the government should consult the proposed body instead of the Chief Justice of India. In our view it will invite lobbying, destroy the very basis of confidentiality and undermine the position of the Chief Justice as the head of the judiciary. And what if members of the proposed commission do not agree? Will it not leave all powers of making appointments and transfers in the hands of the executive?
It is not for us to say whether Mr. Kumar deserved to be given an extension or to be confirmed or not. For we are not competent to go into the charges which the Chief Justice of the Delhi High Court had made against him. We also do not wish to engage in a trial of our own, as Mr. Justice Tulzapurkar has accused some newspapers of having done during the hearing of this case. But we find the majority ruling somewhat odd. If a person is considered good enough to be appointed an additional judge of a high court, why should he be denied an extension unless either the workload of the high court has gone down or his record or reputation has been poor? Indeed, why should he not be confirmed if there is a vacancy? Why should, in fact, additional jobs not be created if the backlog of cases continues to increase, as it has in the case of most high courts. This is, of course, a commonsensical view which may not be pertinent in strictly constitutional-legal terms. But conventions in such cases are as relevant as the letter of the law. We feel that by taking the view it has by a majority in Mr. Kumar’s case, the Supreme Court has thrown away an opportunity to help establish a healthily convention.