Feel punitive act: Madras Bar Association questions transfer of CJI, justice Sivagnanum

Chennai: Lawyers at the Madras Bar Association have banded together to question what they term as 'opaque' transfer orders for two judges, namely Madras High Court Chief Justice Sanjib Banerjee and Justice TS Sivagnanam. According to the resolution passed at the emergency board meeting conducted on Sunday, the Bar Association believes both transfers are punitive measures intended to target two judges who have been questioning government policies. Over 200 lawyers had written a petition to the Madras High Court and the Supreme Court Collegium to look into the matter.

Justice Sanjib Banerjee was vocal in calling for the Election Commission of India to be held responsible for the rise of COVID cases in April as they had failed to maintain proper protocol, going as far as to say that those involved should be charged with murder. He, along with Justice Sivagnanam had also pulled up the Tamil Nadu State government for the Sterlite unrest.

Senior advocate V Prakash who moved the resolution on Sunday told The News Minute that there should be more transparency in transfer orders for judges, and that if the Chief Justice who approves them has any material to justify such transfers then the public also has a right know about it since judges are public officials. The Bar Association was also sure that proper transfer protocol was not followed in the case of either if the two judges he asserted.

He added that before suggesting a transfer, apart from consulting members of the Collegium as well as those who have worked with the judge, the Collegium is also supposed to consult the judge or the chief justice about what their personal circumstances are. The bar association believes these procedures were not followed in Justices Sanjib Banerjee and Sivagnanam's cases, Prakash said.

The advocate also raised a red flag about the timing when the resolutions regarding the transfer of judges were uploaded. He said that while CJ Sanjib Banerjee's transfer was recommended on September 16, it was only uploaded recently, while nearly all others were uploaded on September 17. It was possible for judges to contest transfers but many often did not since those presiding over the case would be from the Collegium itself, Prakash said.

In the memorandum signed by the 230 lawyers to the Madras High Court and Collegium, the adroitness of Justice Banerjee in calling attention to government faults.

"This raises the worrisome question of lack of transparency and opacity in decision making by the Collegium. Even if the Collegium is privy to information that may have prompted such a drastic measure, members of the Bar and the public have a right to know the reasons for this transfer," the document reads, as quoted by Livelaw.

"Such "punishment transfers", as they came to be known during the infamous Emergency, send out an alarming signal that honest and fearless judges are subjected to political retribution and independence of the judiciary is under threat. Further, the power to transfer has also been used as a punitive measure when allegations of corruption or nepotism are made against a judge," it says.

Justice Banerjee was officially supposed to be transferred to the Meghalaya Court while Justice Sivagnan was slated to go to Calcutta.