By Inderjit Badhwar

In this issue of India Legal magazine (November 16, 2020), Justice Kamaljit Singh Garewal, one of the most eminent and illustrious retired jurists of the Punjab and Haryana High Court, elaborates on a subject most members of the judicial community talk about but rarely commit to writing and analysing: The transfer of judges.

Our editors decided to put Justice Garewal’s thought-provoking dissertation on our cover page because we believe, as he does, that it is a policy that needs revision as part of the larger imperative of judicial reforms.

Also Read: Justice Garewal’s story: Transfer of Judges: A policy that needs revision

While the transfers of High Court judges may be constitutionally permissible, they may not be necessary. Ending transfers of judges will make High Courts judicially strong, effective and independent is what the judge argues forcefully and convincingly as he delves into the historical perspectives of this practice and its evolution. 

Justice Garewal reminds us that while the territory of India hasn’t changed except for the inclusion of Goa and Sikkim, ongoing re-organisations, mergers and divisions of states have been continuous projects. These steps were mostly to meet regional or linguistic demands or for administrative and political considerations. “One just has to spread out the 1950 map of India to see the territories of Part A, B, C and D states. Each part of India was constitutionally required to be served by a High Court so that each citizen had a High Court above him to protect his rights,” writes Justice Garewal.

Transfers were the order of the day to ensure that judges, because they were not in sufficient numbers, in rotation could serve communities spread over vast territories. This ensured access to justice under the rule of law to as large a segment of the population as possible.

It was a complex weave. Here’s an example from Justice Garewal’s brilliant exposition: The Lahore High Court covered the Punjab province from Peshawar to Delhi and beyond. On the day of Independence, East Punjab High Court came up at Simla and assumed jurisdiction over present Punjab, Haryana, Delhi and large parts of present Himachal (except the princely hill states). Later, Patiala and East Punjab States Union (PEPSU) High Court got merged with it in 1956. The Court had moved to Chandigarh a year earlier. Delhi High Court, a bench of the parent Punjab High Court, separated in 1966, and surprisingly, Himachal right up to Kangra, Kullu, Lahaul and Spiti came under a bench of the Delhi High Court from 1966, till the Himachal Pradesh High Court was created in 1970.

Before the promulgation of the Constitution, there were only 11, now there are 25 High Courts. Therefore, the transfer of a High Court judge may not be necessary anymore. “State judiciaries have settled down on a permanent basis,” writes Justice Garewal. “The transfer policy needs revision, and all transferred judges should be transferred back to their parent High Courts. The Constitution has given the power to the president to transfer High Court judges. The question is not the existence of power, but the frequent exercise of the power to transfer. Ending transfer of judges shall make High Courts once again judicially strong, more effective and independent.”

Justice Garewal’s adumbration of his principal thesis is a powerful weave of historical jurisprudential evolution in the context of the compulsions of the formation of the modern, constitutional Indian state and the administrative acumen required to deal with its complexities. And his prescriptive essay deserves close reading.   Suffice it to say that it convincingly justifies his conclusion that under the Constitution, each state has its own executive, legislature and judiciary. The governor, the chief minister and his council of ministers, the Speaker and the legislators and the chief justice and his companion judges, all perform sovereign functions.

“No head of the state executive or legislature can be transferred. This must also be the rule for the state judiciary. In no other country are judges transferred from the court after appointment. One can never conceive of a judge from New York being sent to Texas or a judge from Scotland to Wales.”

Leaving the EU seems easier said than done for Britain as the High Court of Justice has now demanded that the June 23 referendum be passed through parliament

By Sajeda Momin in London

Even as British Prime Minister Theresa May was preparing for her visit to India, the High Court of Justice in London decided to derail her promise of leaving the EU by the end of March. The Court demanded that the June 23 referendum verdict be passed through parliament before any prime minister can press the Article 50 button and begin the long-drawn-out process of leaving the EU.

The verdict was given in a case filed by a group called People’s Challenge which was launched in the wake of the referendum by those who were unhappy with the Brexit result. The High Court insisted that the government could not use the royal prerogative and bypass parliament. Gina Miller, an anti-Brexit campaigner, is leading the move and the People’s Challenge has already raised more than GBP 1,60,000 to fund its legal costs donated by citizens who would like to remain in the EU.

BYPASSING VOTE

In October, a three-day hearing was held by the Lord Chief Justice, Lord Thomas along with Sir Terence Etherton, the Master of the Rolls and Lord Justice Sales. The Attorney General, Jeremy Wright QC, had accused Miller of attempting to subvert the democratic will of the British people and called it a “backdoor” effort to bypass the Brexit vote. However, on November 3 when the Court gave its ruling, the Attorney General did not turn up to hear it, probably knowing that the law was not on his side.

The government has said that it will be appealing before the Supreme Court, but it is unlikely that the higher court will change the ruling. The Court’s decision does not mean that Brexit will be overturned, but there will definitely be a delay in May’s desire to trigger Article 50 by the end of March 2017. More importantly, parliament will now have a say in the terms that the government negotiates with the EU—whether there will be a “hard Brexit” or a “soft Brexit”.

The chances of a snap general election announced by the Tory Party are also much higher, particularly if the government again loses in the Supreme Court.

As Dominic Grieve, the former Conservative Attorney General pointed out: “The issue in front of the High Court was whether you could undo statute law by a proclamation, by the use of the royal prerogative saying ‘we are leaving the EU’, thereby depriving large numbers of people in this country of statutory rights enacted by the parliament of the United Kingdom which they currently enjoy.” Government lawyers had argued that prerogative powers were a legitimate way to give effect “to the will of the people” who voted by a clear majority to leave the EU in the June referendum. But the Lord Chief Justice told the government “you can’t do that”. “The government does not have power under the crown’s prerogative to give notice pursuant to Article 50 for the UK to withdraw from the EU,” declared the Lord Chief Justice. It must go through parliament and the government must bring in a primary legislation to this effect which needs to be passed by both Houses.

The Court’s decision does not mean that Brexit will be overturned, but there will definitely be a delay in May’s desire to trigger Article 50 by the end of March 2017.

CLOSET BREXITEER

Though May was on the Remain side, albeit reluctantly, from the time of her campaign for prime ministership she has announced that “Brexit means Brexit” and there would be no going back on the results. During the last four months since she assumed premiership, she has shown herself to be a closet Brexiteer who favored a “hard Brexit”. She was not willing to negotiate with the EU on staying in the single market, essential for the British economy, because she did not want to concede on the issue of immigration—a bugbear of hers since she was in the Home Ministry. May has been refusing to give parliament a vote on the terms of Brexit because once power shifts from the hands of the executive to the legislature, the prime minister would lose control. She was determined to use the “royal prerogative” for Brexit so as not to lose control on the negotiations. But the Court’s ruling has meant that now members of both the House of Commons and House of Lords will be given a chance to shape the Brexit process.

The ruling has come as a shot in the arm for MPs across all political hues who have been demanding greater parliamentary scrutiny over Brexit and for May to reveal the broad principles of her negotiating strategy. During the referendum campaign, the Brexiteers had no strategy about what they would do if they won—they simply kept harping on taking “sovereignty back”—not expecting the vote to go in their favor. The task of leaving the EU has fallen on May and she is adamant on doing it her way. “This ruling underlines the need for the government to bring its negotiating terms to parliament without delay. Labour Party respects the decision of the British people to leave the European Union. But there must be transparency and accountability to parliament on the terms of Brexit,” said Jeremy Corbyn, leader of the Opposition.

It also gave hope to the Scottish government of getting a greater say in the move towards leaving the EU. Scotland had voted overwhelming to stay in the EU and after the results were announced, there were strong indications that it may hold a second referendum on whether it should stay in the UK or not because Brexit would not be representative of the Scottish peoples’ aspirations. Nicola Sturgeon, the first minister of Scotland, said her administration would “actively consider” whether to formally join the next legal battle challenging the UK government’s position that it has the right to trigger Article 50 based on the referendum result alone.

POLITICAL JUDGMENT?

The ruling was met with dismay by pro-Brexit MPs, particularly the far right UKIP’s leader Nigel Farage who played a major role in the Brexit campaign. “I worry that a betrayal may be near at hand,” said Farage in his usual over-the-top style. Unhappy with the Court’s ruling, UKIP’s lone member in the House of Commons, Douglas Carswell, went straight for the jugular by suggesting a need for reform of judicial appointments and calling the judgment “political”.

May has been refusing to give parliament a vote on the terms of Brexit because once power shifts from the hands of the executive to the legislature, the prime minister would lose control.

There is no denying that the majority of MPs will vote in favor of triggering Article 50 because they are keenly aware that their constituents have overwhelmingly voted for Brexit, but by putting it through parliament, “democracy will have been asserted”. The Court’s decision argues in favor of transparency in political decision-making—the bedrock of democracy and good governance.

The chances of Brexit being overturned are very minimal. It can only happen in the following scenarios:

• If parliament votes to insert a second referendum clause into the Article 50 Brexit bill
• Some economic catastrophe causes a change in public opinion by 2018
• A snap poll is won by a party which has stated both in its campaign and manifesto that it would work to remain in the EU.

These situations are possible, but one shouldn’t bet on them. While this particular battle has been won by the Remainers, it is highly unlikely that they will win the war.

Lead picture: (L-R) British Prime Minister Theresa May; Leave EU supporters celebrate the result in Sunderland after polling stations closed in the Referendum on the European Union in London. Photos: UNI