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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 Feburary a resolution of the collegium was passed taking a decision on  transfer. Wide spread protests were made by lawyers against the resolution of the collegium as the decision was unreasoned , unconventional, against past practices and had potential to significantly effect 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 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 Feburary 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 as 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 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 public interest or in 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 clearly 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 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 spelled 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 to the people of India. Transfers without reason can instill fear in the minds of the judges, the first casualty of which would obviously 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.”

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 [email protected] The personal blog is at https://lawumbrella.wordpress.com/

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Pics of This Policeman Are Making HP Police Deptt Proud, Melting Hearts

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Policeman in Chail solan helping elderly during curfew

Solan-Pictures of a policeman approaching an elderly woman and later carrying a heavy bundle of fodder for her are making Himachal Pradesh Police proud. This policeman is being applauded by not only the people but also by his department. 

The pictures are taken in Chail area of the district where an elderly lady was carrying fodder for livestock from jungle during the relaxation period in curfew.

Head Constable Jasvir Singh Chail Solan

On seeing the elderly lady struggling with a bundle of fodder (green tree-leaves), which appeared to be heavy for her, an on-duty policeman carried the bundle on his back for her.

HP Police Helping People During COVID-19 Curfew

A resident of Kunihar in Solan district posted these pictures on his social media handle. He recognized this policeman as Head-Constable Jasvir Singh, who was also his classmate 17 years ago.

policeman in himachal helping old lady

We don’t know about this policeman in his personal life, but a mention of this gesture is important if seen symbolically in context to the police-citizens relationship.

This compassionate gesture of a policeman, in a time when the police is enforcing curfew and mostly seen dealing strictly with people to make them comply with the law, is melting hearts.

Visuals of people either being beaten or punished physically for breaking curfew did attract criticism not only from the people but also from the DGP SR Mardi.

However, the same policemen are also going a step ahead to help people in various ways during the COVID-19 crisis. In various districts, there are instances where policemen are even spending from their own pockets to help the needy around them. Perhaps, pictures of all of them won’t appear on social media but good policemen are there helping people while discharging their duty. 

These pictures remind us that policemen aren’t devoid of emotion and compassion.  Therefore it becomes duty of every citizen to support the police and make its job of maintaining law and order easier.

 

..SABHI POLICE KI VERDI WALE BURE INSAN NAHI HOTEInka naam mr.jasvir singh hai.mere shehar.(KUNHAR) ke nazdeek…

Posted by Sunny Shandil on Wednesday, 8 April 2020

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Rs. 1 Crore to HP Police Department for PPE and N95 Masks

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HP Police PPE kits and masks

Shimla-Himachal Pradesh Government on Saturday sanctioned rupees one crore (Rs. 50 lakhs from HP COVID-19 Solidarity Response Fund and Rs. 50 lakhs from State Disaster Response Fund) to Police Department for purchase of high-risk Personal Protective Equipment (PPE) kits and N-95 masks for police personnel of the State in the wake of pandemic COVID-19.

HPSEB Contributed 1.97 crore Towards Chief Minister Relief Fund

On behalf of officers and officials of H.P. State Electricity Board Limited, the Chairman of the Board, Ram Subhag Singh, contributed Rs. 1.97 crore towards Chief Minister Relief Fund on Saturday.

Chief Minister again made a fervent appeal to the people for the generous donation towards this Fund so that needy people could be benefited.

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17 People of Himachal Visited COVID-19 Hotspot Nizamuddin in Delhi: HP Govt

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Himachali's at Nizamuddin, Delhi

Shimla-Himachal Pradesh Government on Tuesday confirmed that as many as 17 people of the State were on the religious congregation at Delhi Nijamuddeen. All of them are under 14 days surveillance of Delhi Government at New Delhi and till now they have no symptoms of COVID-19.

These persons belong to Chamba, Sirmaur, and Kullu districts.

This large religious gathering at Delhi’s Nizamuddin has emerged as a virus hotspot with links to seven COVID-19 deaths. Among those who had attended the gathering, 50 have tested positive in Tamil Nadu, 24 in Delhi, 21 in Telangana, 18 in Andhra Pradesh, 10 in Andamans and one each in Assam and Kashmir after attending the gathering. 

Union Ministry of Home Affairs (MHA) shared details of foreign and Indian Tabhlig Jamaat (TJ) workers in India with all States on March 21, 2020, after COVID-19 positive cases among these workers surfaced in Telangana.

All the Tabligh Jamaat workers staying at Hazrat Nizamuddin Markaz are being medically screened since March 26. So far, 1203 Tabligh Jamaat workers have been medically screened.  Over 300 of them had symptoms of COVID-19 and were referred to different hospitals in Delhi.

Various nationals, particularly from Indonesia, Malaysia, Thailand, Nepal, Myanmar, Bangladesh, Sri Lanka and Kyrgyzstan had come for Tabligh activities.

Meanwhile, So far, 1339 Tabligh Jamaat workers have been shifted to Narela, Sultanpuri and Bakkarwala quarantine facilities as well as to LNJP, RGSS, GTB, DDU Hospitals and AllMS, Jhajjar. Rest of them are being currently medically screened for COVID-19 infections. No new case has been reported in Himachal. 

Usually, all the foreign nationals visiting India as a part of Tabligh team come on the strength of a tourist visa. MHA had already issued guidelines that they should not indulge in missionary work on a tourist visa. State Police would be examining categories of visas of all these foreign TJ workers and take further action in case of violation of visa conditions.

BACKGROUND

Tabligh Jamaat Headquarter (Markaz) is located in Nizamuddin, Delhi. Devout Muslims from across the country and also from foreign countries visit the Markaz for religious purpose. Some also move out in groups to different parts of the country for Tabligh activities. This is a continuous process throughout the year.

On March 21, approximately 824 foreign Tabligh Jamaat workers were in different parts of the country for missionary work. Besides, around 216 foreign nationals were staying in the Markaz. Besides, over 1500 Indian TJ workers were also staying in the Markaz while around 2100 Indian TJ workers were touring different parts of the country for missionary work. Since March 23, the lockdown has been strictly imposed by State authorities/police across Delhi including in and around Nizamuddin and Tabligh work came to a halt.

As of now, nearly 1400 confirmed cases and 35 deaths have been reported. During the last 24 hours, 227 new confirmed cases and 3 new deaths have been reported.

 

 

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