Shimla- Justice S Murlidhar of Delhi High Court who was hearing a petition on Delhi Riots, had sharply condemned both the government and police on Wednesday. His scathing remarks questioned the working of the police. Following it, orders for his immediate transfer came late at night the same day to the Punjab and Haryana High Court.

Earlier on 12th of February, a resolution of the collegium was passed deciding on transfer. Widespread protests were made by lawyers against the resolution of the collegium as the decision was unreasoned, unconventional, against past practices and had the potential to significantly affect the functioning of Courts.

Coincidently the judge on the day of the Center’s notification of transfer was hearing a PIL on DELHI Riots and had asked why there shouldn’t be FIRs against those who had indulged in hate speech before the riots occurred.  He told the Delhi Police chief to “seriously consider the consequences” of not registering the FIR.

The judge has been regarded by the DELHI Bar as one of the ‘citizen-friendly judges’ who is known for standing up for individual rights and for passing many orders for checking unconstitutional use of state power. The Judge has delivered several landmark judgments and was known to be impervious to pressure.

The Collegium & Sherlock Holmes

Former Supreme Court Judge Justice Madan Lokur had raised questions on the manner of functioning of the collegium. The Judge observed;

“The mystery behind the change in the appointment of the chief justice from one high court to another will need a Sherlock Holmes to unravel”.

As a rule of practice, It is only when a person is being appointed as a high court judge for the first time that he or she is sent out of his practising court. Once a permanent High Court judge is appointed and posted, he is transferred to another high court only upon elevation as Chief Justice. In the present case, there has been a departure from this rule of practice. In such circumstances where the norms are not being followed and an unconventional procedure is followed then it becomes imperative that reasons are recorded in writing stating the cause of such a departure. Not only reasons have to be recorded but even the consent of the judge needs to be taken. These principles flow from the basic structure of the constitution i.e “independence of the judiciary”.

However, the Notification affecting the transfer doesn’t mention the reasons for the decision, nor does the resolution of the Collegium passed on 12th February state any good reason for the transfer.

The Strike of Lawyers

The hurried manner in which the transfer is effected is troubling so much so that the Delhi High Court Bar Association (DHCBA) has condemned the transfer recommendation and also passed a resolution unanimously regarding this. The Bar Association had expressed dismay at the transfer of one of the finest judges by the collegium of the Supreme Court.

Expressing “shock” at the collegium recommending Justice Muralidhar’s transfer, the high court bar association hoped the decision would be recalled, saying such transfers were “detrimental” to the institution.

The resolution stated;

“Unequivocally and in the strongest possible terms, the Delhi high court bar association condemns the said transfers… Such transfers are not only detrimental to our noble institution but also tend to erode and dislodge the faith of the common litigant in the justice dispensation system. Such transfers also impede free and fair delivery of justice by the bench,” a resolution passed by the association said.
The association requested its members to abstain from work on 20 February 2020, “as a token of protest as the said transfer is a rarest of rare case, the majesty of our revered institution is at stake”.

Hon’ble Judge has been a part of important decisions as, disclosure of assets by judges under RTI, Legalization of Homosexuality and 1984 anti-Sikh riots.

Transfer of Judges – A Threat to The Independence of Judiciary

If the judiciary has to be a bulwark for the protection of the “rights of the individual” and mete out even-handed justice without fear and favour” then it should be independent.

Exercise of the judicial function is one which requires more than any other work a proper balance of mind and an undisturbed and peaceful life. Administration of justice cannot properly be done by a disgruntled judge. If transfer hangs over his head like a Damocles’ sword, the balance of justice slips out of his hand. An immediate and unnoticed transfer may cause so great inconveniences that it may compel him to quit rather than comply with the transfer order.

In the judges’ case, the Supreme Court held that the consent of the judge was not necessary for his transfer from one High Court to another. According to the Court, there are three safeguards against arbitrariness in the use of the President’s power to transfer judges under Article 222. They are:

1. There must be full and effective consultation with the
   Chief Justice of India.
2. The power of transfer can be exercised in the public interest only and not by way of punishment.
3. Judicial review of the decision of the President to
   transfer a judge.

However, do these safeguards suffice to preserve the independence of the judiciary, one of the cardinal faith of the Constitution? Judges, unlike government servants, hold an office under the Constitution and there is no master-servant relationship between the government and the judge. A close study of Sankal Chand’s case and the Judges case would reveal that the Supreme Court has miserably failed to bring out the clear distinction between the transfers by punishment and transfers in the public interest or the present matter, as the order put it, “for better administration of justice“. These expressions are not capable of any precise definition and in a given set of circumstances may be applied differently by different people. In many cases, it would not be possible to rule out some elements of a penal character. The present procedure, as it stands, has instead of limiting the scope of transfers only enhanced its scope by giving a very elastic definition of public interest and ‘better administration of justice”.

Object /Reason and purpose of transfer needs to be spelt out in Orders

The great Mr Palkhiwala, after examining the Judges’ case had rightly pointed out that the dichotomy was not between transfer in the public interest and “for better administration of justice” and transfer by punishment, but the dichotomy was between transfer in’ public interest’ and transfers for ‘extraneous considerations’. According to him, the object of the transfer and not the result, or effect, of the transfer is the decisive factor. The object of the purpose needs to be clearly spelt out in such orders and this cannot be done in a slip-shod manner.

Consent OF the Judge must be sought

Justice Bhagwati in Sankal Chand’s case and reiterated in the Judges case that the “transfer is made consensual” was the only effective safeguard for a judge against arbitrary transfer and only if such an interpretation is accepted, the noble concept of independence of the judiciary can be preserved. This view is shared by many eminent jurists, judges, lawyers etc. The Lord Chief Justice of England, Hon. Lord Lane, speaking on “Standards of Judicial Independence” expressed the view that a judge ought not to be liable to be transferred from one High Court to another without necessarily seeking his consent. Justice H. R. Khanna, a former judge of the Supreme Court, regretted that the Law Commission’s recommendation that no judge should be transferred without his consent unless a panel consisting of the Chief Justice of India and his four seniormost colleagues find cause for such a course has fallen into deaf ears.

The Hon’ble judge not only ‘did not give his consent‘ but had also taken a critical view of the functioning of the police and remarks made by the members of the ruling party. The timing of the transfer during the pendency of such a sensitive matter is highly suspicious and can have a chilling effect upon judges and judicial functioning.

Better administration of justice can be achieved by providing detailed reasons to the Hon’ble judge and the people of India. Transfers without reason can instil fear in the minds of the judges, the first casualty of which would be the justice itself.

The constitutional provision (Article 222) on the transfer of judges has a direct and proximate connection with the independence of the judiciary. This provision, like many other constitutional provisions, can be made use of for achieving many useful purposes as well as evil purposes until a clear and reasonable interpretation is given to the Article keeping in view the principle of “independence of the judiciary”  in mind. Its abuse will have many dangerous effects on the judiciary and its independence. If the judiciary loses its independence and becomes subservient, the net result would be that the Constitution will lose its prominence. Justice Khanna has aptly put it like this:

“Once the independence of the judiciary is undermined and the seats of Justice came to be occupied by men with pliable conscience’ and subservient to the political wing of the State, the first casualty would necessarily be the supremacy of the Constitution, for it, would be open to every branch of the State to ride roughshod over the provisions of the Constitution.”

(The post was first published in https://lawumbrella.wordpress.com/ )

Shimla– Ahead of elections to the Delhi Assembly in February 2020, the Election Commission of India has ordered the removal of Union Minister Anurag Thakur’s removal from the list of BJP’s star campaigners after he was caught on camera raising shockingly incendiary slogan. It is an embarrassment that Thakur has brought upon for Himachal Pradesh and his party.

His act was criticized by majority of people, especially because Thakur holds a constitutional post with the Union Ministry and is expected to not act according to the office he holds. People from his home-state also expressed shock and condemned his act.

The order came a day after a notice was served to Anurag seeking an explanation over his slogan. The EC found the comments made as prima facie violative of Model Code of Conduct (MCC).  The EC clearly mentioned that the removal should be done with “immediate effect and until further orders.”

In its notice, the EC said that it was prima facie of the view that the comments made by Anurag “have the potential of disturbing communal harmony and aggravating existing social and religious communities.” The EC said, thereby, it is a violation of MCC which is in effect since January 6.

In the notice, the EC referred to Section 123 of the Representation of the People Act, dealing with attempts to promote enmity or hatred between different classes of citizens on the grounds of religion, race, caste, community or language.

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Along with Anurag Thakur, EC also ordered the removal of Lok Sabha member Parvesh Singh Sahib from BJP’s star campaigner list. Parvesh had made a shocking remark in which he said, “lakhs of people gather there (Shaheen Bagh), they will enter your houses, rape your sisters and daughters, kill them.” It was followed by an appeal to elect Modi (BJP to power) to remain safe.

This statement in a speech while campaigning for BJP’s candidate from Rithala on January 27 had attracted widespread criticism.

Footage of Thakur was shown by media widely and circulated on social media quickly. Targeting anti-CAA/NRC protests at Shaheen Bagh, which is going on for over 40 days now, Anurag can be seen shouting “Desh ke gaddaron ko”, which is completed by party workers by shouting “goli maro sa**on ko.” (Gun down the traitors).

Also Read: CAA and NRC – A Dissent on Grounds of Equality and Fraternity

However, the removal of Anurag from campaigner list doesn’t imply that he would not be able to campaign anymore. It just implies that expanses of his travel for campaigning would be added to the expanses of the candidate he campaigns for. Political analysts are calling it merely a slap on the wrist of BJP. The trick appears to keep media and people distracted from real issues such as the economic slumber haunting the nation.

Bharatiya Janata Party has apparently run-out of relevant agendas and ammunition against the Aam Adami Party in Delhi ahead of Assembly elections. The best trump card is to create a communal divide and scare people by telling them that the minority is trying to annihilate their society and the nation. The remaining gap is filled by spreading misinformation. There is no socio-economic issue in the speeches of its leaders and even star campaigners. Anti-national, tukde-tukde gang, traitors, and Pakistan are the only phrases that are being used repeatedly to cast opposition AAP and any other anti-CAA/NRC groups as anti-nationals.

Further, it has become a trademark of BJP’s tactic to bully and suppress any voices rising against decisions of its government by branding them anti-nationals and sympathizers of the minority community.

Shimla-While foul remarks and hate-speeches from political leaders have become common, the standards of political sloganeering dipped to a level where a member of Council of Union Ministers joined the bandwagon. The Minister of State for Finance Anurag Thakur has stirred another controversy, which is aptly distracting media from real issues. Most of the criticism came considering the fact that nation’s economic health is in tatters and Anurag is the part of the team that is scheduled to present budget for this session since February 1, 2020.  

Anurag Thakur landed in a controversy after, while campaigning for Rithala candidate ahead of impending assembly elections in Delhi, he was seen targeting anti-CAA/NRC protesters and provoking party workers to shout “Desh Ke Gaddaron ko, Goli maro sa**on ko” (gun down the traitors). The video footage is now widely being circulated on social media.

Thakur drew criticism not only from oppositions but also from legal experts. The act was termed as a violation of the Model Code of Conduct. Faced with pressure from the opposition and people, the Election Commission of Delhi sought a report from the district electoral officer, which was submitted to the Election Commission of India on Monday. Following it Anurag was served a notice by the EC. 

The act fits in the series of branding voices of resistance against government’s controversial decisions as anti-nationals or as tukde-tukde gang. Most resistance came from educated youth, therefore, prestigious institutes like JNU were targeted and no stone was left unturned to brand students as anti-nationals and the institute as a hub of anti-nationals.  

So far, politicians of the ruling party in the peaceful Hill State had refrained from making controversial or incendiary remarks. Therefore, for the State of Himachal Pradesh, its rising leader has brought embarrassment as he showed indifference towards the dignity of his official position. Questions are being raised as to who would be responsible if any of party worker translates this slogan into reality.

The matter becomes more serious considering the fact that a huge protest has been going on in Delhi’s Shaheenbag against the CAA and NRC. These protesting people are being branded as anti-nationals and traitors.

The protest is going on for over a month now as women from almost every age group have come out of their homes to stage an indefinite protest. On January 26, 2020 – on the 71^st Republic Day- tricolour was furled at the Shaheenbag with enthusiasm.

This protest is inspiring more such protests in other parts of India and become a headache for the Centre government.

Sources: News Agencies