HC judge can’t be emasculated by fear of transfer: Justice Manmohan

SUpreme margaret court adjudicate justness Manmohan on sabbatum said that a heights court judge cannot be emasculated by the fear of transfer, describing the issue as a serious concern that warrants wider debate.Speaking at the 1st SCBA National Conference titled “From Pendency to Prompt Justice: Rethinking Justice Delivery in Indian Courts,” justice Manmohan said that a high court judge can function effectively only when vested with full authority and independence. He added that a judge should not work under the fear of transfer and must be adequately empowered.“A high court judge can only function when he has full power and full authority. He cannot be scared of a transfer. You have to empower him. You cannot emasculate a high court judge by putting the fear of transferring him. I think this is a very serious issue which needs to be debated. I have seen it in some courts, and I really am quite disturbed about it, and I think a real good debate needs to happen on this,” justice Manmohan said.Justice Manmohan’s remarks follow closely the controversy surrounding the transfer of Madhya Pradesh High Court judge justice Atul Sreedharan to the Allahabad High Court in October last year, wherein the Supreme Court Collegium expressly noted in its resolution that the decision was taken “on reconsideration sought by the government”, instead of its earlier proposal to transfer him to the Chhattisgarh High Court.The decision was taken by the Supreme Court Collegium, then headed by Chief Justice of India BR Gavai on October 14, after the government sought reconsideration of its earlier recommendation. In August, the Collegium had initially proposed Justice Sreedharan’s transfer to the Chhattisgarh High Court.Prior to his transfer, justice Sreedharan was fourth in the order of seniority at the Madhya Pradesh High Court and his proposed transfer to the Chhattisgarh High Court would have placed him within the Collegium there. However, following his transfer to the Allahabad High Court, he is currently fifth in seniority, as per the high court’s website, after Chief Justice Arun Bhansali.In his speech, justice Manmohan also called for a debate on the collegium system, saying that it faces several internal challenges. He said that mistrust and debate over the decision of a state high court’s Chief Justice to recommend an individual for judgeship are proving costly for the judiciary. “I have always wondered if the Chief Justice of a State has recommended one person as a judge, why should there be any debate about that name? The chief justice of a court is not to be trusted? How do you get talent? You have to trust the man at the spot,” justice Manmohan said.He added, “The chief justice of a state is not an ordinary officer, he is a constitutional functionary and we don’t trust him? The Supreme Court collegium will sit on it, then the government will give its advice, the Intelligence Bureau (IB) will give its advice. This mistrust in the system is costing us dearly. I think we need to debate the collegium system threadbare. I am finding a lot of challenges within the system, to put it mildly and honestly. It really needs to be examined.”The judge also expressed concern over courts increasingly dealing with issues such as access to fresh air and clean water, matters that were once taken for granted, observing that these are areas the government ought to address, rather than leaving them to judicial adjudication. “Imagine today, certain things which we used to take as granted are now being agitated in court on a daily basis. That is, fresh air, which was taken for granted when I was young. Or clean water. This was also taken for granted when I was when I was going to school. But today, we have courts which have to grapple with this issue. Why should courts be grappling with all these issues? This is to be done on the administrative side by the government, by the executive. And look at the proportion or the magnitude of the problem. The courts have to step in, because people have no other alternative and no other forum to appeal to,” he said.Justice Manmohan also observed in his speech that one of the key factors contributing to rising pendency is the lack of adequate judicial infrastructure at the grassroots level and lack of resources. “According to me, the problem of pendency is not just about numbers. It’s far deeper. It’s about insufficient resources, structural insufficiencies,” he said.