Overview on 'Transfer of Judges'

Overview on ‘Transfer of Judges’

Akshara Lagisetty

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This Blog is written by Akshara Lagisetty from Amity University, MumbaiEdited by Prakriti Dadsena.

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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.

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.

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.

• 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

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.

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.

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.

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.

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 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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