The Karnataka Bar Council has called on all advocates to abstain from work on October 4 as a mark of protest against the transfer of Justice Jayant Patel, which prevented his elevation to the seat of Chief Justice of the High Court. In its protest letter to the CJI, the Council has held that the transfer exposed lack of transparency and accountability in the working of Collegium system. The Gujarat High Court Advocates’ Association too had given a call to abstain from Court and had questioned the transfer of Justice Patel in their letter to the Registrar.
As the acting Chief Justice of the Gujarat High Court, Justice Patel had directed a CBI investigation into the Ishrat Jahan fake encounter case. This CBI probe led to the arrest and chargesheeting of a large number of senior Gujarat police officers for the cold-blooded killing and was a major embarrassment for Narendra Modi, who was chief minister of Gujarat at the time. As the current Chief Justice of the Karnataka High Court is due to retire on October 9th, Justice Patel would ordinarily have become acting Chief Justice of the Court. Hence it will not be incorrect to assume that the timing and nature of this transfer was intended to deny him becoming Chief Justice and punish him for his orders that have embarrassed the State. The Collegium themselves by such an arbitrary act, lacking transparency have cast serious apprehensions whether they can and will safeguard the ‘Independence of the Judiciary’.
However such threats to the ‘Independence of the Judiciary’ in the nature of transfer or appointments have been increasing off late. Gopal Subramanium, the former Solicitor General, was not appointed as a judge of the Supreme Court in June 2014 despite the Collegium having recommended his name. As amicus curiae, he was responsible for the Supreme Court entrusting to the CBI the investigation into the disappearance of Kausar-bi and Sohrabuddin Sheikh in a fake encounter. The then Modi government in Gujarat opposed the decision. Another similar case is the transfer of Justice Rajiv Shakdher from the Delhi high court to the Madras high court. As a judge of the Delhi high court, Justice Shakdher embarrassed the Modi government in 2015 by setting aside a lookout notice issued by the Intelligence Bureau against the Greenpeace activist, Priya Pillai. Justice Shakdher defended her right to travel, and express dissent. The arbitrary transfer of Justice Abhay Thipsay from the Bombay high court to the Allahabad high court is yet another example. Justice Thipsay, as a judge of the Mumbai sessions court in 2006, had imposed life sentences on nine of the 21 accused in the Best Bakery riot case during the 2002 Gujarat carnage. Another embarrassment for the Modi government, which has been accused of engineering the Gujarat carnage.
This attack on the Independence of the Judiciary reminds one of the dark days of emergency when Justice H.R. Khanna was superseded by Justice M.H. Beg as CJI, following which he resigned. Justice Khanna was the lone dissenter in historic A.D.M. Jabalpur v Shivkant Shukla, where the majority judges held that fundamental rights could be suspended during the Emergency. Justice Khanna was punished for his ‘dissent’. However, the fundamental difference in the case of Justice Patel’s transfer is that it has been directed by the Collegium i.e. the so-called defenders of this Independence.
Additionally when Senior Advocate, Dushyant Dave boldly criticizes these acts of the Collegium in an interview with NDTV 24X7 on September 27th, rather than taking serious cognizance of this attack from ‘within’, the Bar Council of India’s issues a show-cause notice to him. The Supreme Court Bar Association (SCBA) too in its press release has taken serious objection to Dave’s comments.
The Indian Association of People’s Lawyers (IAPL) holds the transfer of Justice Jayant Patel and subsequent acceptance of his resignation as another serious attempt to punish Judges who are willing to question the excesses of the State and those in power. What makes such an attack on the Independence of the Judiciary even more condemnable is that it is from ‘within’ the ranks of the Judiciary. In defence of this Independence, the Supreme Court had struck down the National Judicial Appointments Commission in 2015. However with such instances, one can really question whether the Collegium will be able to safeguard its Independency in the face of stubborn and authoritarian executive. Meanwhile, it’s high time that the BCI becomes truly representative of the Interests of Advocates in India rather that issuing show cause notices to those who are voicing their constructive criticism.
1. The Collegium cease from directing transfers of Judges that blatantly appear to serve the interests of those in power.
2. The CJI and Registrar Generals of the Supreme Court, Allahabad High Court and Karnataka High Court answer questions raised by the Gujarat and Karnataka advocates regarding the transfer of Justice Jayant Patel.
3. The BCI immediately revoke its show cause notice to Senior Advocate, Dushyant Dave and instead issue a public apology for the same.
Advocate Surendra Gadling,
Indian Association of People’s Lawyers (IAPL)