Why transfer threats against a Karnataka HC judge raise questions on the collegium’s independence

On July 11, Karnataka High Court judge HP Sandesh recorded in his order that he had been threatened with a transfer as he was investigating a corruption case involving Karnataka’s Anti Corruption Bureau head Seemanth Kumar Singh.

This disclosure has shocked legal commentators: it is a rare instance of a judge not only speaking about a transfer threat in public but actually recording it in an order.

It also raises questions about the independence of the collegium, the body of senior Supreme Court judges that recommends the appointment and transfer of judges.

The debate has gained prominence as commentators point to a rise in the number of judges being transferred. Along with this, the executive has been ignoring the collegium’s recommendations for judicial appointments, failing to follow the law.

How it started

The Karnataka judge Sandesh was hearing the bail application of a deputy tehsildar who had allegedly taken a bribe of Rs 5 lakh. He had asked the lawyer of the Karnataka Anti Corruption Bureau to place on record some documents related to the investigation. However, this was not done.

On June 29, Sandesh remarked that by failing to produce the documents, the bureau and its additional director-general of police Seemanth Kumar Singh were protecting the deputy tehsildar.

Then, on July 5, Sandesh said in court that another High Court judge had told him about the punitive transfer of a judge, hinting that Sandesh could meet a similar fate if he continued investigating the bureau and Singh.

Experts shocked

Lawyers and former judges have expressed alarm at the series of events.

“In my view, it is an extremely serious matter and must be thoroughly and quickly inquired into,” said former Supreme Court judge Madan Lokur.

Former Allahabad High Court Chief Justice Govind Mathur said that for him, the more serious problem was the fact that such threat had been conveyed through another sitting judge.

“This indicates that some live link exists between the [sitting] judge and the person who extended [the] threat [the ADGP].”

Such a public announcement is also a rare event. “I am shocked at the series of events,” Delhi-based senior advocate Sanjay Hegde said. “Such conversations, if they do happen, have never been put on judicial record.”

Procedure on transfers

To understand why such transfers undermine the independence of the judiciary, it is important to consider the procedure involved.

According to the Memorandum of Procedure that governs the appointments and transfers in the higher judiciary, a transfer of a High Court judge must be initiated the Chief Justice of India. While doing so, the Chief Justice of India has to solicit the opinion of several other Supreme Court and High Court Chief Justices.

These opinions must be recorded in writing and accepted by the collegium, which comprises the Chief Justice of India and the four senior-most Supreme Court judges. After this, the proposal is sent to the executive for approval.

The Supreme Court collegium has primacy in this process and the executive is supposed to follow its recommendations. This has been established over a series of judgments. Earlier, the executive had primacy in appointing judge but the judiciary took control of the process to maintain its independence.

Increasing influence over collegium

As a consequence, threats that judges will be transferred for action against the executive also raise questions about the role of the collegium in this process.

The Karnataka incident isn’t the only time lawyers and judges have raised their eyebrows at the transfer process. Last year, when Justice Sanjib Banerjee, who had criticised the Centre several times, was transferred from the Madras High Court to the Meghalaya High Court after a short tenure of 10 months, many viewed this this as a punitive transfer from a “bigger court” to a “smaller court”.

Even Justice Akil Kureshi, who had sent Amit Shah to the custody of Centre Bureau of Investigation in the Sohrabuddin Sheikh encounter case when he was Gujarat Home Minister, was in 2018 transferred from the Gujarat High Court – where he would have become the Chief Justice – to the Bombay High Court. In 2019, he was transferred to the Tripura High Court and then to the Rajasthan High Court in 2021.

Despite being the second-most senior High Court judge in the country, Kureshi’s name was not even recommended for elevation to the Supreme Court by the collegium. Several legal commentators had asked if the executive had influenced the collegium over this recommendation.

The rise in the number of transfers is not the only trend that shows how the role of the collegium is being diminished, observers say. The Centre has failed to move on several judicial recommendations even though the collegium has reiterated some names. This violates the Memorandum of Procedure.

The Centre has also increasingly started “splitting recommendations” – where it accepts some of the collegium’s recommendations while ignoring others. “This [splitting] started in 1986-’87, but its frequency is much more now,” Deepak Gupta, a former Supreme Court judge. “The executive wants to have an upper hand in appointments and transfers.”

‘An opaque bargain’

Such instances have led legal experts to ask if the collegium is failing to play its intended role.

“With the Memorandum of Procedure having become irrelevant and the collegium continuing in its opaque manner,” said Alok Prasanna, senior resident fellow at the Vidhi Centre for Legal Policy, “It is not possible to tell if the nominations are coming from the judiciary or from the executive.”

Prasanna said it appears that the process has reverted to the pre-collegium system where judicial appointments were the result of an “opaque bargain between judiciary and Union government”.

According to former Supreme Court judge Gupta, the collegium must insist that its recommendations are accepted as sent. “If they do not take a firm stance, they cannot blame the government for interference,” he said.