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Transfer of Judges – A Tool to Undermine the Institution of Justice

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Justice S. Muralidhar

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/ )

Deven Khanna is a Lawyer, practicing at High Court of Himachal Pradesh, other H.P Courts/Tribunals and the Supreme Court of India, he is an alumnus of a National Law School. For any queries related to the articles, he can be contacted at 7018469792 or at khannadeven@gmail.com. The personal blog is at https://lawumbrella.wordpress.com/

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Himachal: Warnings of Delta Plus Virulence Fall on Deaf Ears, No Restriction on Visitors from Affected States  

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Delta plus in himachal pradesh

Shimla-Yesterday, the Centre government directed the state governments to take immediate measure in wake of the spread of more infectious Delta Plus variant.  As the Delta Plus variant is posing a threat of the third wave, the states were told to take steps like preventing crowds, increase testing, more focus on surveillance, contact tracing and put boosting vaccine coverage on a priority basis. Following it, Himachal Pradesh Government might have announced an alert over Delta plus variant, but there wasn’t any follow up on instructions passed by scientists and health experts to take strict restrictive measures ahead of the impending third wave. 

To make it worse, high rank officials and political leaders were seen flouting Covid-19 SOPs on several occasion, which sent wrong messages to the masses. The pictures and videos showing flouting of Covid appropriate behavior by Chief Minister Jairam Thakur and Directorial General of Police, Sanjay Kundu, alongwith other staff for Anupam Kher is the most recent to mention. A group photograph and video of the same were widely circulated on social media and invited huge criticism from the people.  

So far, the state has not reported any case of the Delta Plus variant. But the neighboring states – Punjab, Haryana, and Jammu & Kashmir – reported their first cases yesterday. This puts the boarding areas, like in Una district, at a higher risk. Chief Secretary to HP Government, Anil Khachi, yesterday said samples have been sent for genome sequencing. 

Despite repeated warnings of Delta plus variant (B.1.617.2.1.), Himachal Pradesh has thrown its borders open to all and lifted all restrictions for inter-state travel in just one go. From June 23 onwards, the state government removed the condition for registering on the e-pass portal for visitors intending to enter the state. In the Cabinet meeting held on June 22, 201, the government first decided that e-pass restrictions would be removed from July 1, but later it changed the decision and instead implemented it immediately.

This haphazard decision is said to have come under huge pressure from the hospitality industry – the worst-hit sector, leading to financial crisis and mass unemployment among its stakeholders. Related associations had been approaching Chief Minister Jairam Thakur with their pleas to provide relief, but mostly faced disappointment. The stakeholders say the state government didn’t provide any significant relief, which is making the survival of the industry difficult.

Also Read: Read Eight Reliefs That Himachal’s Devastated Tourism Industry Seeks from HP Govt  

Also, stakeholder of the industry, especially hoteliers, had been demanding the removal of restrictions and conditions on the entry of tourists to Himachal so that they could fetch the remaining peak tourist season.

With its inability to offer relief, the HP Government took the chance to waive off restrictions in a haste.

At the same time, the state government has decided to conduct offline examinations for the undergraduate classes starting from July. A section of the students had been condemning the HP government for scheduling exams without vaccinating students. Some student bodies had been asking the government as to why online classes were possible but not online exams. 

The state government also waived off restrictions on timings for the opening of markets/shops.

As scientists and health experts warn of the virulence of the new variant and with neighboring states already on alert after reporting cases of the new variant, the HP government hasn’t even mentioned any intention to at least put a check on the visitor from the states where cases of Delta Plus are being reported. Carrying an RT-PCR negative report for visitors from such states/cities would have been a wiser step. 

Officially, the state is on alert, but no measures have been announced to check the entry and spread of the variant into the state. The state government does speak of preparing for the anticipated third wave, but there is hardly any long-term preventive strategy. The Covid appropriate behavior is hard to adopt when markets and tourist places are crowded with visitors.

Why Delta Plus is a Big Concern

The World Health Organization (WHO) has labelled the Delta variant as ‘Variant of Concern’.

The Centre and scientific/medical institutes in India also agree with that Delta Plus as a variant of concern and could be the cause of impending third wave. Last Tuesday, based on the findings of INSACOG, the Union Health Ministry had alerted and advised Maharashtra, Kerala and Madhya Pradesh regarding the Delta Plus variant of COVID19.

INSACOG had warned that the Delta Plus variant has increased transmissibility, stronger binding to receptors of lung cells, potential reduction in monoclonal antibody response.

“Delta variant is more resistant to medication, treatment and vaccination. Therefore, people who have been vaccinated can still be affected by this variant and can go on to get a clinical illness, Archana Dhawan Bajaj, director, Nurture IVF, told a national English Daily.

“Neutralising antibodies against this variant post-vaccination seem to be nearly five times lower in people who have already been vaccinated than the other variants,” she said.

Further,  Dr Raman Gangakhedkar, ex-Head Scientist of Epidemiology and communicable diseases, ICMR, has also expressed concern over the reports that Delta Plus has reported pathophysiologic change and affecting different organs.  Dr Raman says that it could transfer from cell to cell and would more likely produce neurological symptoms as a common manifestation.

So far India has reported 51 cases of the Delta Plus variant.

Delta Plus variant is a variant of Delta with an additional mutation -B.1.617.2.1.

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Kullu Brawl: New Video Shows Farmers Expressing Discontent with CM Jairam Thakur-led Govt in Front of Union Minister

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nitin gadkari kullu visit

Kullu-The Superintendent of Police, Gaurav Singh, 2013 batch IPS, and Chief Minister Jairam Thakur’s Security Personal, ASP Brijesh Sood, got into an ugly scuffle on June 23 and created an unruly situation. A verbal spat between the two officials of the HP Police led to slapping and kicking each other.

What’s humiliating for the state police department was the fact that this unwanted incident occurred on an occasion where the Chief Minister had come to the Airport to welcome a Union Minister – Nitin Gadkari.

Also Read: IPS Gaurav Singh and CM’s Security Personnel Exchange Slaps & Kicks, Video Goes Viral, Inquiry Ordered

The video has appeared on national news channels and the incident made headlines, raising question over the professionalism of the state police. This part of the entire episode, is getting more attention from the media. But a new video has emerged adding another layer to the controversy, as when Union Minister Nitin Gadkari stopped the car and got out to speak to people who were holding a banner of “Four-Lane Sangharsh Samiti” and BJP flags. It turned out, that these people were farmers, who have been affected by the four-lane project as their lands were acquired for it. These farmers allege that before coming into power, the Bharatiya Janata Party, in its election manifesto, had promised compensation four times the circle rate if elected to power. These farmers also allege that after coming to power, the government didn’t fulfil this promise that also included employment to affected youth. These aggrieved farmers say they have been raising their grievance for the last four years, but the government didn’t lend an ear. With these grievances, the farmers had come to see the Union Minister.

Gadkari’s visit has come right before the by-elections in the state. He is supposed to inaugurate and dedicate some projects during this visit. This visit was supposed to leave a positive impact. The video also shows that the farmers’ group did not create any obstruction to the convoy of the Union Minister, neither they create any ruckus. They just stood outside the Airport with banners and posters in their hands. This halt was not scheduled for Gadkari and the Chief Minister was caught off-guard.

The farmers told Gadkari all about their grievance and also alleged that Chief Minister and the Deputy Commissioner, Kullu, weren’t even ready to listen to them. To discuss the matter, there and then Gadkari called for the Chief Minister, who rushed towards the spot from his vehicle.

Watch What Happened When Gadkari Spoke to Agitating Farmers

In the video, the farmers can be heard telling the Union Minister that they are BJP supporters and workers. Later, they were also seen chanting “Jai Shri Ram” for the Union Minister. They can also be heard saying that despite their party being in power at both Centre and the State, there is no hearing. This added to the humiliation for the Chief Minister as the party supporters were not at all satisfied with him.

The video also shows the Chief Minister losing temper when the farmers repeatedly kept saying that they had been agitating for the last four years over the same grievance. He was seen swiftly turning towards farmers with a hostile gesture of warning. The farmers were heard retaliating to this gesture and saying “ Gussa to hame bhi aa rha hai Thakur sahb (we are also angry Mr Thakur)”.

At the same time, farmers expressed their gratitude towards the Union Minister for stopping the vehicle himself and attending them. “This is his (Gadkari) greatness that he saw us and bothered to listened to us,” a farmer later said while speaking to the media.

The situation put both politicians in contrast while dealing with the same situation related to the people’s grievance.

This video aptly explains why the Chief Minister and his security were annoyed with the local police for allowing people to stand outside the Airport. Though the local police was not responsible for the halt of Gadkari’s convoy, the Chief Minister’s security triggered arguments over it. This argument eventually led to one of the most shameful moments for the HP Police. An IPS slapping another police officer is hard to justify or defend, but taking into account the history of an IPS officer like Gaurav Singh, the question as to what exactly caused him to lose his temper to such an extent that he dared to slap the Chief Minister’s security personal on an occasion where the Union Minister was also present.

Also Read: Who is IPS Gaurav Singh, the Officer in News for Slapping CM Jairam’s Security Personnel

Now, as it’s a well-established fact that the 2014 and 2019 Lok Sabha elections were fought with Narendra Modi as the BJP’s face, and so were the state assembly polls of Himachal Pradesh in 2017. Owing to the media and the IT cells, the very name and face of PM Narendra Modi won a majority for BJP not only in Himachal but in other states too. Therefore, the situation couldn’t get any worse for a Chief Minister who is serving his first term when the slogan “ Hamara PM Kaise Ho, Gadkari Jaisa Ho” was raised by the people.

What message this entire episode would send to the BJP High Command about Chief Minister’s capacity to contain the distress amongst its own party supporters and handle the officers? This doesn’t end here. The opposition has alleged that this incident clearly proves that the Chief Minister doesn’t have a hold on his officers, as well as, party sympathizers, especially from the farming community. The opposition is citing the current incident as an example of BJP’s anti-farmer attitude. Pertinent to mention that the current Centre government is at loggerheads with farmers who had been protesting for nearly one year against the contentious farm laws passed in 2020.

Himachal Kisan Sabha also released a statement in which it alleged that the Chief Minister was desperate to ensure that the farmers do not get to speak to the Union Minister. Further, the results of the recently held elections to the four Municipal Corporations of Himachal Pradesh – Solan, Mandi, Palampur, and Dharamshala-have already dented Jairam Thakur’s term.

Ahead of the by-polls in the state, the factionalism in the party is already a challenge for Thakur.

Last but not the least, the treatment given to bureaucrats and IPS officers by politicians which results in such ugly, unruly situations like these has also become a topic of debate.

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India’s Revised Vaccination Policy and Supreme Court’s Role Behind This Change in Approach

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india's revised vaccination policy

Shimla-Free vaccine to all Indian citizens above 18 years of age would be available from 21st June onwards, the Government of India announced yesterday. The Centre has also announced that private hospitals would not be able to levy arbitrary charges for vaccination and the rate would be fixed. The government also rolled back its policy for procurement of vaccines, which was under heavy criticism not only from the opposition but also from the Supreme Court of India.

Though, the Centre claimed that the roll-back was a result of the demands raised by state governments, but some believe this decision came right after harsh judicial scrutiny of the government’s previous policy by the Supreme Court, whose initiation is being lauded by the citizens of India amid this pandemic.

“Many states came forward with a demand for reconsideration of the vaccination strategy and for bringing back the system that was there before 1st May,” the Centre said while defending the rollback.

Also, the Centre was even objecting to the court’s jurisdiction in matters related to policymaking and had termed it as an encroachment on the jurisdiction of the executive. However, very mindful of its jurisdiction, the court had mitigated this allegation of the Centre by explaining how policymaking is subject to judicial scrutiny. The court made the Centre aware of the ‘dialogic judicial review’, where the Court can question the executive and demand justifications from it over non-conformity of a policy to the constitutional rights.

Furthermore, the Supreme Court had grilled the Union government over its faulty and discriminatory policy as states were left on their own for the procurement of vaccines. In its orders passed on May 31, a bench comprising of Justice DY Chandrachud, L Nageswara Rao and S Ravindra Bhat came down heavily upon the central government. The bench had termed the policy approach as “arbitrary and irrational”  because it did not provide free vaccination for the 18-44 year age group.  The bench had sought clarification on policy and dual pricing in which states were being made to procure vaccines directly from the manufactures and were invariably paying more for vaccines while the Centre procured the same vaccines at lower rates.

“Due to the changing nature of the pandemic, we are now faced with a situation where the 18-44 age group also needs to be vaccinated, although priority may be retained between different age groups on a scientific basis. Hence, due to the importance of vaccinating individuals in the 18-44 age group, the policy of the Central Government for conducting free vaccination themselves for groups under the first 2 phases, and replacing it with paid vaccination by the State/UT Governments and private hospital for the persons between 18-44 years is prima facie arbitrary and irrational” a bench observed while passing an order on May 31, 2021 concerning a Suo moto case on “Re-Distribution of Essential Supplies and Services During Pandemic”.

Further, the court had also expressed concerns over the digital divide which would make accessing vaccine equally difficult for a large section through online registration.

Earlier, in its orders passed on April 30, the bend had observed that this policy approach would be “detrimental to the right to life and health”. The bench had also observed that this policy requires rethinking, as it needs to be formulated in conformity with the provisions of Articles 14 and 21 of the Indian Constitution.

The bench aggressively went on to order the government to share all details of the vaccine purchase and distribution, as well as provide information on how the budget allocated for the vaccination (₹35,000 Crores ) was used.

Provisions of the New Vaccination Policy

  • Procurement of 25 per cent vaccinations which was earlier with states will now be undertaken by the Government of India.
  • The government of India will buy 75 per cent of the total vaccines produced and will provide it to the states free of cost. No state government would be spending anything on vaccines.
  • The system of 25 per cent vaccines being procured directly by the private hospitals will continue. Private hospitals can’t charge more than 150 rupees service charge over the decided price of the vaccines.

The Centre said that this policy would be rolled out in two weeks.

“In two weeks, the Centre and states will make necessary preparations as per new guidelines,” the Centre announced yesterday.

Till today, more than 23 Crore vaccine doses have been administered in the country.

To ward off the embarrassment caused by such a contentious policy which was not conforming with the constitutional rights of the citizens, Prime Minister Narendra Modi, without referring to the judicial review, blamed it on the state governments.

“As the corona cases started declining, questions arose about the lack of choice for states and some people questioned why the Central government is deciding everything,” he said.

“India’s vaccination program was run mostly under the Central government. Free vaccination for all was moving forward and people were showing discipline in getting vaccinated when their turn came, amid all these demands for decentralization of vaccination were raised, the decision about priority to certain age groups was raised. Many types pressures were exerted and certain sections of media took it as a campaign,” the PM said.

But with that being said the role of the judiciary in making the government roll back its policy in the interest of the people is being lauded as the victory of judicial review. Also, it has attracted positive response for the apex court which was being alleged of evading several matters related to the public interest under the pressure from the current political regime.

Pradhan Mantri Garib Kalyan Anna Yojana Extended  Till Deepawali.

In another major announcement, the Central government announced the extension of the Pradhan Mantri Garib Kalyan Anna Yojana till Deepawali.

As per the announcement, till November, 80 crore people will continue to get a decided amount of free food grain every month.

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