The transfer of Chief Justice Vijaya K. Tahilramani from the Madras High Court to Meghalaya is shocking and disconcerting. She had presided over a court of 75 judges and administered a subordinate judiciary in 32 districts in addition to the Union Territory of Puducherry. In contrast, the Meghalaya High Court has only three judges and a subordinate judiciary in just seven districts.

The transfer of a Chief Justice from one of the bigger High Courts to one of the smallest High Courts in the country is an obvious case of downgrading and amounts to public humiliation of the highest judicial officer in a State. Her response to this humiliation has been graceful but resolute — resignation.

Supreme Court’s jurisdiction over transfer of judge-

• The Supreme Court derives its power to select, appoint and transfer judges from its verdicts in Three Judges Cases.
• After a spate of “punishment transfers” of upright judges by the Central government during the Emergency in 1975, the judiciary arrogated to itself the power in order to preserve judicial independence.
• Thus, the collegium system consisting of the Chief Justice of India and four senior-most judges of the Supreme Court was put in place.
• However, the apex court’s power to transfer is not unfettered and absolute and can only be carried out in public interest for better administration of justice.
• The Supreme Court can order a judge’s transfer to improve the functioning of either of the High Courts or if there are close relatives of the judge practicing in the same Court.
• The apex court can also do so if the judge has litigation or property interest in the State or has become controversial and so her continuance in the same High Court is not conducive.

What can be done-

• The Supreme Court cannot function as a sentinel of justice unless it puts its own house in order. Its functions, both judicial and administrative, have to be transparent and accountable.
• The collegium is not a creation of the Constitution, but of the court itself.
• Yet, when the collegium’s decisions are called into question for having been influenced by extraneous considerations, there is no institutional check.
• The government’s attempt to have a National Judicial Appointments Commission (NJAC) was rejected by the Supreme Court in 2015 and the system of collegium has continued with its opaqueness and inconsistencies.
• A proper mechanism needs to be placed whereby the selection and transfer of judges needs to be carried on in public scrutiny.

Conclusion-

In recent times, despite its judicial pronouncements in cases such as the entry of women into Sabarimala and triple talaq, the Supreme Court has not exactly covered itself with glory in cases of women on its own administrative side.

 Any arbitrary transfer by the Supreme Court collegium reduces the High Court judges to a subordinate status. Further, the collegium system, by its opacity, has failed to build a fearless and strong judiciary and serve the public interest.