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Adarsh Pharasi,Amity University, Uttar Pradesh
Karnataka High Court judge, Justice Jayant Patel’s resignation on Monday has come as a shock to the legal fraternity in the light of the chain of events which led to this “victimization by the executive aided by the spineless collegium” in the words of Senior Advocate Dushyant Dave who condemned the executive for unfortunate turn of events called upon by executive as Justice Patel ruled against the state in the fake encounter case of Ishrat Jahan, which further led to his resignation.
It is believed that Justice Patel resigned in a huff over his transfer to Allahabad High Court where he would be third senior most judges against his second position in seniority list in Karnataka High Court. The transfer order came recent to the day of retirement of current Karnataka High Court’s Chief Justice, Justice Subhro Kamal Mukherjee on 9th October when Justice Patel could have automatically become acting chief justice. Further, he was not confirmed as Chief Justice of Karnataka High Court despite the fact that the previous collegiums had recommended the transfer of the incumbent chief justice out of Karnataka High Court to facilitate the appointment of Justice Patel as Chief Justice of the High Court. These unfortunate turn of events or the unnecessary hurdles in the way of Justice Patel’s appointment as Chief Justice of the High Court gives the impression to the legal fraternity that the executive is flexing its muscle to victimize Justice Patel for directing CBI investigation in fake encounter case of Ishrat Jahan when he was acting chief justice of the Gujrat High Court. The CBI’s probe in Ishrat Jahan case led to the arrest and charge sheeting of a large number of senior Gujrat Senior officers for her cold blooded murder which was a major embarrassment for Gujarat government led by Narendra Modi at that time. In an interview to Bar and Bench, Justice Patel said that he resigned only to relieve himself from the institution and wished not to make further comments. Both Karnataka and Gujrata Bar Associations announced boycott for a day in protest of the resignation. Mr. Dave advocated for the elevation of the Justice Patel to the Supreme Court or as the Chief Justice of the High Court in an article dated 16 March, 2017 as:
“Justice Patel, appointed on December 3, 2001, is senior to four of the five recent appointees. For no reason he is not being confirmed as chief justice although the previous collegium had recommended the transfer of the incumbent chief justice out of Karnataka to facilitate the appointment of Justice Patel in his place. More painful is the fact that the collegium has recommended nine judges for appointment as chief justices in nine high courts. Each of them is junior to Justice Patel by periods ranging from two months to four and a half years. Why so?”
Justice Patel joined the Bar in August, 1979 and initially started practice at District Court, Rajkot. He shifted his practice to Gujarat High Court in 1985 and was then elevated as an Additional Judge of the High Court in December, 2001. He was confirmed as a permanent Judge in August, 2004. Thereafter, he was appointed as the Acting Chief Justice of the Gujarat High Court in August, 2015 and was sworn in as a Judge of Karnataka High Court in February, 2016.
The resignation is perceived by the legal fraternity to be the defeat of the doctrine of rule of law and the separation of power as the executives use their power to appoint judges to harass the one who had ruled against them. The resignation of Justice Patel shall be construed as a protest against the vindictive agenda of the executive. The protest is not only against individual grievances but against the onset of judiciary crises where the pillar of sate which is entrusted to uphold the independence of the judiciary themselves uses it to take grudge upon the judiciary. But this judiciary crisis marked its onset in 2014 when former solicitor general, Gopal Subramanium was not appointed as a judge of Supreme Court despite the collegiums having recommended his name. This stubbornness on the part of the government to appoint and transfer judges without considering collegium’s recommendation gives impression that the struggle of judiciary for its independence which was thought to be over when the apex court struck down National Judicial Appointment Commission in Supreme Court Advocates-on-Record Assn. v. Union of India, (2016) 5 SCC 1 is not yet over and the collegiums has no ground but to cede ground under the executive. In the history of Indian Judiciary, a similar protest was witnessed against the arbitrary influence of executive in the appointment of Chief Justice of India during the regime of Indira Gandhi in 1973 and 1977. In 1973, Justices J.M. Shelat, K.S. Hegde and A.N. Grover – resigned following the appointment of Justice A.N. Ray as CJI who was appointed by superseding the three resigning justices. The three judges were the part of the majority in Keshavnanda Bharti case which was ruled against the government. In 1977, Justice H.R. Khanna resigned in protest of the appointment of Justice M.H. Beg as CJI by superseding his seniority as he was the lone dissenter in the case ofA.D.M. Jabalpur v. Shivkant Shukla which was ruled in the favour of the government.