This is a Guest Post by AMITA DHANDA
Justice Karnan a sitting judge of the Madras High Court was transferred from Madras to Kolkatta to resolve the administrative logjam between Justice Karnan and the Chief Justice of the Madras High Court. 21other judges of the High Court also complained that it was difficult to work with Justice Karnan. The soft solution did not yield the desired result as the transferred judge invoked his alleged judicial power and pronounced an interim stay of his own transfer order. The stay he ruled would hold until the Chief Justice of India filed a written statement explaining the transfer order, which he contended was in breach of a 1993 judgement of the Supreme Court. The Supreme Court punctured this defiance by asking the Chief Justice of Madras High Court not to allocate any judicial work to the Judge. The judicial crisis has passed but the administrative and human challenge remains.
How should we as citizens view this exchange? How should this incident be understand by us? One way of looking at the episode is through the legal lens of constitutionality, due process and jurisdiction. The other is to perceive the lived reality of a Dalit judge when elevated to the higher judiciary. An analysis of the incident, only vis a vis the requirements of the law, would not provide even a working hypothesis on what caused Justice Karnan to adopt a course of action, which many would perceive as suicidal for his career. The eccentricity explanation, which is doing the rounds, conveniently escapes the matter of caste discrimination. Consequently, this piece firstly examines the manner in which existing law speaks to Justice Karnan’s decision; then dwells on the question of caste discrimination and lastly cogitates on possible ways of addressing this all pervasive discrimination.
Right from the Sakalchand ruling the Supreme Court has ruled that Article 222 of the Constitution empowers the Executive to transfer High Court judges in public interest. The Supreme Court has provided against executive misuse by according primacy to the opinion of the Chief Justice who in turn is required to consult with the Chief Justices of the concerned High Courts as also his own colleagues in the Court. Transfers are thus regulated by the collegium. They are to be in public interest and never as a way of punishing the concerned judge. Transfers have become a preferred mode to foster pluralism. Since January 28 1983, the Government of India has followed the policy of inducting Chief Justices of all the High Courts from outside the State.
There have been minority judgments in Sakalchand (1977) and SP Gupta (1982) which opined that such transfers should be made with the prior consent of the concerned judge, however these opinions did not obtain majority endorsement. The judge at best may be consulted before the transfer is ordered. If the concerned judge believes that the transfer order is driven by irrelevant considerations or for improper purpose then, the judge, and the judge alone, can seek judicial review.
The above stated legal position makes it clear that Justice Karnan could litigate against the Supreme Court order but he could not adjudicate upon it. It is true that the Constitution does not subordinate the High Court to the Supreme Court. The High Court has plenary powers on matters within its jurisdiction. However transfer of High Court judges have at all times been within the purview of the Supreme Court. Even as the order is issued by the President the initiation of the transfer process must be made by the Chief Justice of India. Thus Justice Karnan was clearly in breach of the law when he stayed the execution of his own transfer order. He in effect became a judge in his own cause, in breach of all principles of natural justice.
Is an evaluation of the stay order on the touchstone of the settled legal position on transfers sufficient to understand the stay order issued by the judge? Justice Karnan at each point is complaining of blatant and subtle forms of caste discrimination——- a falsely puffed up docket; denial of key administrative positions and shabby treatment by colleagues at social occasions. He complains of barricades which may be invisible to others but he experiences on an everyday basis. Consequently, he protests but these protests are not seen as good form. Instead his colleagues view him as an upstart entrant who fails to observe the rules of the game. In a recent online missive, a senior advocate of the Court holds forth on how Justice Karnan could never have made it to the High Court but for his closeness to Justice K G Balakrishnan. It is another matter that a similar elevation with varied caste equations , would be seen as legitimate social networking.
Justice K Ramaswamy in Ingale vs State of Karnataka( 1992 ) bemoaned how economic mobility does not translate into social acceptance. He refers to instances of upper caste judges refusing to fraternize or dine with judges from backward castes. The very many subtle discriminatory practices be they of separate utensils or special cleaning operations after the departure of the senior backward caste functionary. Unfortunately, Justice Kuldip Singh, the other judge on the bench did not engage with this angst. Instead he referred to Justice K Ramaswamy’s judgement as an erudite exposition of sociological and constitutional angulations on which he wished to express no opinion, as it was not required to decide on the merits of the case. Thus the claims of both collegiality and humanity were subordinated to the technical claims of the law.
Proverbial wisdom speaks of the many deaths humans experience before they die. Psychologists speak of a suicide attempt, as a cry for help. I perceive Justice Karnan’s interim stay order as one such attempt. The apex court has neutralized the harm that could be caused by the order; now they need to aid their evidently wounded colleague. The one to one meeting that the Chief Justice of India has had with Justice Karnan is a happy augury. It is hoped that the Chief Justice of India would not limit himself to diffusing a difficult administrative storm. This meeting should hopefully lead to initiatives which transform induction of judges from vulnerable backgrounds into integral members of the Court. The Court having retained the power of appointment with itself should actively work at enhancing the diversity index in the judiciary. It next needs to have the National Judicial Academy develop training programs which promote collegiality and equip judges to engage with the unfamiliar, the diverse and the under-privileged. After all the judiciary cannot address vulnerability in society if it fails to notice it amongst themselves.
This morning’s paper informs that Justice Karnan has apologized for the order, which he says was prompted by mental frustration. With this apology the judge has come back to the fold; but should this ostensible return to conformity wipe out the structural questions his alleged deviance had raised.
A Hindi translation of this article was published in Rashtriya Sahara 19.2.2016.
Amita Dhanda is a Professor at NALSAR University of Law, Hyderabad.