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TN lawyers on warpath against move to shift chief justice

A section of lawyers in the Madras high court have threatened to launch an agitation opposing the reported move to shift Chief Justice M S Liberhan.

While one of the advocates, V Prakash, intends going on a fast, others seem to have planned sit-in protests within the huge court complex in Madras.

''The chief justice was transferred to Madras from the Punjab and Haryana high court only about a year back,'' said an advocate. ''And the move for this transfer now, it is argued, is part of a package where the chief justices of three other high courts will also be affected, with the change of government at the Centre.''

''There is no need for such a transfer,'' says a senior advocate. ''It wreaks of political motives, particularly as it comes after the change of government at the Centre. Moreover, the law ministry too is in the hands of an All India Anna Dravida Munnetra minister.''

As he points out, various AIADMK leaders, starting from party general secretary J Jayalalitha, are facing corruption charges. ''The reported move may be seen as an indirect way to influence the lower-level judges... And the avoidable transfers can only cast aspersions on the powers-that-be.''

In this context, the lawyers also say there is now need for a codification of the rules governing transfer of judges. ''True, the Supreme Court has upheld the concept of transfer of judges, and has also recommended a high-level panel of senior judges for deciding on individual cases. But there are no norms as to how often a senior judicial officer like a high court judge can be transferred, or on the reasons behind such transfers.''

The agitating lawyers point out two reasons for some restraint on frequent transfers. Given the varied socio-cultural and judicio-legal traditions in various parts of the countries, not to mention the language problem, it takes a transferred judge some time to adjust to the new environs, and 'get a hang' of the judicial temperament and background in each state or region. Frequent transfers thus will have an unsettling effect on those judges, and they will feel 'judicially-rootless' while handling some of the cases, particularly on the civil side.

More importantly, these lawyers feel the transfer of judges is still seen as a some kind of a punishment, at least by a section of the lawyers and the litigants. Frequent transfers of the same judge would thus undermine his own credibility and standing, not only among the public but also among his fellow judges and subordinate judges. The latter, in particular, look up to the high court judges, not only on judicial matters, but also in some administrative issues.

While a section of these lawyers are contemplating the filing of a case before the Supreme Court to highlight these points -- and obtain a ruling on the mode and modus of such transfers -- those close to the AIADMK deny the alleged motives with all vehemence. ''The Dravida Munnetra Kazagham and the Tamil Maanila Congress lawyers want to tarnish the image of the AIADMK and its ministers at the Centre,'' says a senior lawyer in the party camp.

As he points out, the law minister, or even the prime minister does not come into the picture as far as transfers of high court judges go. ''It's the prerogative of the chief justice of India, who is being aided by a group of other senior judges of the Supreme Court. And the Supreme Court judges don't take kindly to political-meddling as we have been seeing for some time now.''

The agitating lawyers are also upset over the forcible resignation obtained from the central government standing counsel in Tamil Nadu, appointed by the earlier regimes at Delhi. In their place, 32 lawyers, all reportedly belonging to the AIADMK or reportedly close to the party, have been appointed.

''This flies in the face of credibility and accountability,'' said an agitating lawyer. ''And some of the newly-appointed lawyers have already appeared for AIADMK supremo Jayalalitha and others in various cases pending before the courts. The Centre, through the income tax department or the Enforcement Directorate, is the prosecutor in some of these cases. And these lawyers, appearing for the government, now would make it unethical, to say the least. After all, you cannot be the advocate for both the defence and the prosecution in the same case.''

Sources, however, point out a technical rider to this argument. ''When you talk in legal terms, the law only expects the very same lawyer not to appear for both the sides to a litigation in the very same case. There are any number of standing counsel and any number of cases pending against the AIADMK functionaries. Not all of them have appeared for the defence in all the cases. The names can be rotated or juggled around, to meet with the requirements of credibility and ethics.''

The lawyers, who are mostly sympathetic to the DMK and the TMC, also refer to the transfer of various governors at one stroke by the Bharatiya Janata Party government at the Centre. ''It does not concern us directly,'' said one of them, ''As the transfer of judges does. But there too we need some norms.''

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