Transfer of Judges

INTRODUCTION
The Constitution of India has provided provisions for every organ of the state i.e.
Legislature, Executive and Judiciary. The judges being part of the judiciary the
constitution provides the provisions for appointment as well as transfer of the judges.
The decision of appointing and transferring the judges is taken by both judicial and
executive members of the government.

Article- 124 and 217 provide for the appointment of the judges and Article-222 deals
with the transfer of the judges.

HISTORICAL BACKGROUND
Before independence there was no direct provision for transfer of judges. In the year of
1944, a new clause i.e. clause c was included in Section-220 of Government of India Act,
1935 where it states

“the office of a judge shall be vacated by his being appointed by His Majesty to be the
judge of the Federal Court or of another High Court.”

But as we can see there is nothing in this provision has the word transfer.

After independence when the drafting committee felt it was unnecessary to add a
provision about transfer as Article-193 provided that there was no prohibition against a
judge of one High Court becoming a judge of another High Court, and clause (c) of the
proviso to Clause (1) of Article 193 clearly stated that the office of the judge would be
vacated if he was appointed by the President to be a judge of the Supreme Court or any
other High Court.

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Later the drafting committee decided to add a provision regarding transfer of judges.
Thus the assembly approved Section-222(1) and came in to existence where it states
that the president can transfer of high court judges after consulting with the chief
justice of India within the jurisdiction of India.

PROVISION IN LEGISLATURE
222.Transfer of a Judge from one High Court to another. –

(1) The President may, after consultation with the Chief Justice of India, transfer a Judge
from one High Court to any other High Court.

(2) When a Judge has been or is so transferred, he shall, during the period he serves,
after the commencement of the Constitution (Fifteenth Amendment) Act, 1963, as a
Judge of the other High Court, be entitled to receive in addition to his salary such
compensatory allowance as may be determined by Parliament by law and, until so
determined, such compensatory allowance as the President may by order fix.

 Article 222 of the Indian Constitution deals with the procedure for transferring
judges from one high court to another.
 This provision authorizes the President to transfer a judge from one high court to
another, but only after consulting with the Chief Justice of India.
 The judge who is being moved is also entitled to a compensatory pay.

COLLEGIUM SYSTEM
A case called The Supreme Court Advocates-on-Record Association (SCARA) v. Union of
India, 1993, famously called “Second Judge Case” which led to the formation of the
collegium system. In this case a 9 judge constitution bench overruled the first judge
case and provided guidelines to form a Collegium System for appointment and transfer
of the judges and even chief justices of the high court.

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The collegium system has not been mentioned in the constitution and doesn’t have any
provision leading to the formation of the collegium system. Collegium consists of the
Chief Justice of India and four senior most judges of the Supreme Court.

PROCEDURE
• The President appoints the Chief Justice of India and Supreme Court judges based on
the powers granted by the Constitution.
• On the proposal of the Chief Justice of India, the judges of the high courts are
recommended.
• The Chief Justice of India would consult with the senior-most judge of the high court
from whence the preferred nominee is appointed.
• The CJI will also consult with the other collegium members.
• Following the consultation, the recommendations are forwarded to the law minister,
who then forwards them to the Prime Minister, who then advises the President on the
transfer.
• The Supreme Court collegium makes decisions on the elevation of high court justices.
• The collegium also specifies the procedure for transferring judges from high courts.
• If the Chief Justice of a high court is transferred, his or her replacement must also be
appointed.
• When it comes to transfers, the Chief Justice’s decision is final. Not only that, but the
approval of the judges being transferred is not required.
• However, the transfers must be undertaken in the best interests of the public and the
administration of justice.

CRITICISM AND DRAWBACKS

• The collegium was widely criticized in terms of the transparency, lack of decision-
making rationale, eligibility criterion, and the fact that the collegium doesn’t record any
reason for the transfer drew a lot of attention to the formation of the same.
• There is a good chance of nepotism and favors and can lead to appointments that may
not always be deserving and appropriate.
• This system also gives the impression of monopolism as judges are appointing judges.

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• Lack of transparency is also concerning and the system is being called with the word
“opaque”. The public are also unaware of how many times they meet or are there any
rules which are being followed.
• Due to the secrecy about the grounds of elevating the judges or transferring is leading
to the weakening the confidence and independence of the judiciary from the executive.

NATIONAL JUDICIAL APPOINTMENTS

COMMISSION (NJAC)
To address the criticism and drawback the government introduced the National Judicial
Appointments Commission through 99th amendment in 2014. To make this amendment
valid Article- 124 (a), (b) and (c) were added. This was introduces to replace the
collegium system.

Article- 124 (a) and (b) defines who can be the members of the committee and their
duties. Clause (c) empowers Parliament to make laws in the future to regulate the
procedure for the appointment of judges.

The NJAC would consist of a Chief Justice of India as Chairperson, two senior most
supreme court judges, law and justice minister and two eminent persons who selected
by a committee which comprises of chief justice of India, prime minister and leader of
opposition party.

But soon after with the majority of 4:1 Supreme Court in the case Supreme Court
Advocates on Records Association v. Union of India declared the NJAC as void and struck
down the amendment. The reason behind this decision is that the provisions were
interfering with the judiciary’s independence.

IMPORTANT ASPECTS
Consent of the Judges

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For transferring any high court judge from one court to another, the ‘consent’ of the
judge who is being transferred is not needed.

In the year 1993 it was held with majority in second judge case i.e. Supreme Court
Advocates-On-Record Association v. Union of India, that the consent of the judge is not
required and president as consulted with the Chief Justice of India. The reason behind
the transfer should be of public interest and not punishment.

In Union of India v. Sankal Chand Sheth [2] case the above case was referred and help
that there was no need of prior consent of the judge for the transfer under the
provision. It was also said that “any transfer in accordance with the recommendations
of the chief justice of India cannot be treated as punitive or an erosion in the
independence od the judiciary.”

Public Interest
As mentioned earlier a judge can only be transferred for public interest and not as
punishment provided with the consultation with the chief justice of India. A judge can
only be punished for any misconduct through impeachment i.e. Article- 124(4) of Indian
Constitution. The Article-222 of the constitution is very unclear on the question of what
constitutes public interest in the case of transferring of judges and what distinguishes
the transfer a punishment from public interest.

Different answers have been given by different judges

Chandrachud, J. has said–
The factious local atmosphere sometimes demands the drafting of a judge or the Chief
Justice from another High Court and on the rarest of the rare occasions which can be
counted on the fingers of a hand, it becomes necessary to withdraw a judge from a
circle of favourites and non-favourites.

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Dr. Ambedkar in his speech gave two instances with public interest where a judge can
be transferred–
It might be necessary that one judge may be transferred from one High Court to
another in ‘order to strengthen the High Court elsewhere by ‘importing ‘better talents
which may not be locally available. Secondly, it might ‘be desirable to import a’ new
Chief Justice because it might be desirable to have a man unaffected by local politics or
local jealousies.

Other instances regarding public interest may include

• Addressing unsuitable working conditions in the high court where the judge is not
responsible and cannot do anything about them.
• The particular judge cannot align his nature with the other judges in the high court or
cannot get along with them.
• Maybe some people can exploit the close relationship with the judge for favourable
outcomes.

Consultation and Primacy

Article- 222 has clearly mentioned that the transfer can only be done when the
president with consultation of the Chief Justice of India decide to transfer the judge. At
most important and compulsory prerequisite is that the president should consult with
the chief justice of India and the consultation should be effective before transferring
any judge. It is an absolute obligation on the president as held in Sankal Chand’s case.

The court has said the consultation should be effective and full consultation which
means that the president has to provide with full information and facts regarding the
transfer so as to allow the chief justice of India to take a well informed decision and do
his duty as imposed by the constitution.

According to the court when there is difference of opinion between the President and
the chief justice of India, the primacy i.e. final say is given to the Chief Justice of India.
So this means consultation does not always mean concurrence.

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In Sankal Chand’s case, there were essential grounds were laid down to constitute
effective consultation. Some of them are listed below-

• If the Chief Justice of India is not consulted before transferring a judge, the transfer is
deemed unlawful.

• Informally the chief justice must make sure that the judge does not face any personal
difficulty from the transfer and the results must be forwarded to the president

• The fulfilment of the President’s constitutional requirement and the performance of

the Chief Justice of India’s duty are both components of the same process, and once
this procedure is properly followed, the consultation becomes full and effective, rather
than formal and ineffective.

CASES
Union Of India v. Sankal Chand Himatlal Sheth And Anr
In this landmark judgment, Justice Sankalchand H. Sheth was transferred from Gujarat
High court to Andhra Pradesh High Court, this transfer was challenged before the court
on the grounds that the transfer was done without his consent and full and effective
consultation wasn’t done with the chief justice of India. The Supreme Court held that
consent of the judge who is being transferred is not required and that the concurrence
between the chief justice of India and the President is also not needed regards the
transfer of the judge.

S.P. Gupta v. Union Of India [3]

This case is one of the 3 judges case and famously known as first judge case or judge
transfer case. In this case the Supreme Court answered the question whether the
opinions of the chief justice of India are bound to follow by the president. Here the
Supreme Court held by 4:3 majority that the opinions of the chief justice are not bound
to be followed by the president.
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Supreme Court Advocates-on-Record Association v. Union of India
Famously known as second judge case. In this case the judgment of the first judge case
was overruled. This case addresses the question of whose opinion between chief justice
of India and the president regarding the transfer of the judges holds primacy.

With 7:2 majority the Supreme Court held that the opinion of the chief justice is entitled
to the primacy and also the opinion of the CJI will be crucial in the decision making. This
case introduced the collegium system.

Re Presidential Reference [4]

Also known as third judge case, this case addressed the question of consultation,
whether the consultation of CJI is enough or opinion of the other judges is also required
regarding transferring of the judges.

The case led to formation of guidelines for the collegium system and held that the
opinion of the four senior most judges along with CJI is required for the transfer of the
judges.

ANALYSIS
Over the years the concept of transferring judges has been evolving and still, there are
some lacunas in this concept. At present times when the collegium system is scrutinized
and examine its decisions closely, many decisions taken by them do not make complete
sense which is raising controversies.

India is one of the largest democratic countries needs to have a strong judiciary for its
proper functioning and the judges are the justice administrators and interpreters of the
law by which we can understand the significance of the judges in our country.

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That being said, transferring of judges is being done by a committee that lacks
transparency and rationale behind the same, and not a single procedure is prescribed or
criterion is given.

When Justice Chelameswar, once being a part of the collegium asked at what
circumstances or what warrants a transfer a judge he said even he does not understand
to this day in some cases why a particular judge is being transferred. He explains before
the second judge’s case when the power was vested with the president to transfer the
judges there was hardly any transfers being done except when the 16 judges were
transferred during an emergency.

Recently in 2018 Chief Justice Vijaya Kamalesh Tahilramani of the Madras High Court
and one of the senior-most among high court chief justices in India was due to retire in
2020, there was a sudden move to shift her from the madras high court to the
Meghalaya Hight Court just before her retirement. This humiliation caused her to resign
early which caused loss to the society and damage to the credibility of the judicial
administration. Not only this there are many arbitrary transfers which the collegium
refuses to answer for.

There was mid-night controversy, where Justice Muralidhar was notified by the central
government around midnight that he is being transferred from the Delhi High Court to
the High Court of Punjab and Haryana which shocked the public. These arbitrary
transfers are being viewed as a punishment.

In some cases where the character or the integrity of the judge is being questioned and
in certain circumstances transferring the judge may be correct and in grave cases, the
judges are impeached other than these two options which are extreme at both the
ends, the law seems to forget the principle of justice to hear the judge and give the

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opportunity to defend himself. The transfer should not be regarded as a solution for
every problem.

CONCLUSION
The provision provided for the transfer of judges can easily be abused and there can be
dangerous aftermath of this abuse. The opacity of the collegium and arbitrary transfer
of the judges is slowly becoming a part of the reason why people losing faith in the
judiciary.

The presence of the collegium does help in the independent working of the judiciary
thus the government should put a mechanism to help overcome these drawbacks of the
system and which promotes transparency. With this, the faith of the people can be
regained and there will be a sense of checks and balance in the society.

REFERENCES
[1] AIR 1994 SC 268.
[2] 1977 AIR 2328, 1978 SCR (1) 423.
[3] AIR1982 SC 149.
[4] AIR 1999 SC 1.
[5]Why High Court Judges Are Transferred: Justice Chelameswar’s Account
(bloombergquint.com)
[6] Transfer of Judges (thestatesman.com)
[7] ‘Nod of judge not needed for transfer’ – The Hindu
[8] Transfer of high court judges – JournalsOfIndia
[9] All you need to know about NJAC (livemint.com)

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