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Explained | Why are judicial transfers riddled by controversies?

What does the Constitution say on the transfer of judges? What is the current procedure for transfers?

The story so far: The transfer of Chief Justice Sanjib Banerjee from the Madras High Court to the Meghalaya High Court has given rise to a controversy over the question whether judicial transfers are made only for administrative reasons or have any element of ‘punishment’ behind them. In 2019, Justice Vijaya K. Tahilramani, another Chief Justice of the Madras High Court who was transferred to Meghalaya, chose to resign.

What does the Constitution say on the transfer of judges?

Article 222 of the Constitution provides for the transfer of High Court judges, including the Chief Justice. It says the President, after consultation with the Chief Justice of India, may transfer a judge from one High Court to any other High Court. It also provides for a compensatory allowance to the transferred judge. This means that the executive could transfer a judge, but only after consulting the Chief Justice of India. From time to time, there have been proposals that one-third of the composition of every High Court should have judges from other States.

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What is the Supreme Court’s view on the issue?

In Union of India vs. Sankalchand Himatlal Sheth (1977), the Supreme Court rejected the idea that High Court judges can be transferred only with their consent. It reasoned that the transfer of power can be exercised only in public interest; secondly, the President is under an obligation to consult the Chief Justice of India, which meant that all relevant facts must be placed before the Chief Justice of India; and thirdly, that the Chief Justice of India had the right and duty to elicit and ascertain further facts from the judge concerned or others.

In S.P. Gupta vs. President of India (1981), also known as the ‘Judges’ Transfer Case’ and, later, the First Judges Case, the Supreme Court once again had an opportunity to consider the issue. Among other issues, it had to consider the validity of the transfer of two Chief Justices as well as a circular from the Law Minister proposing that additional judges in all High Courts may be asked for their consent to be appointed as permanent judges in any other High Court, and to name three preferences. The Minister’s reasoning was that such transfers would promote national integration and help avoid parochial tendencies bred by caste, kinship and other local links and affiliations.

The majority ruled that consultation with the Chief Justice did not mean ‘concurrence’ with respect to appointments. In effect, it emphasised the primacy of the executive in the matter of appointments and transfers. However, this position was overruled in the ‘Second Judges Case’ (1993). The opinion of the Chief Justice of India, formed after taking into the account the views of senior-most judges, was to have primacy. Since then, appointments are being made by the Collegium.

“In the case of transfer of a Chief Justice, only the views of one or more knowledgeable Supreme Court judges need to be taken into account.” The views should all be expressed in writing, and they should be considered by the Chief Justice of India and four senior-most judges of the Supreme Court, which means, the full Collegium of five. The recommendation is sent to the Union Law Minister who should submit the relevant papers to the Prime Minister. The Prime Minister then advises the President on approving the transfer.

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What makes transfers controversial?

Transfer orders become controversial when the Bar or sections of the public feel that there is a punitive element behind the decision to move a judge from one High Court to another. As a matter of practice, the Supreme Court and the government do not disclose the reason for a transfer. For, if the reason is because of some adverse opinion on a judge’s functioning, disclosure would impinge on the judge’s performance and independence in the court to which he is transferred. On the other hand, the absence of a reason sometimes gives rise to speculation whether it was effected because of complaints against the judge, or if it was a sort of punishment for certain judgments that inconvenienced the executive.

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