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Transfer of Judges of High Court

Process of Transfer of High Court Judges Article

  • Article 222 of the Constitution of India deals with the procedure relating transfer of judges from one high court to another.
    • It empowers the President to transfer a judge from one high court to another, after consultation with the Chief Justice of India.
    • It also provides for a compensatory allowance to the transferred judge.
  • The proposal for transferring a HC judge (including a Chief Justice) should be initiated by the CJI and the consent of the judge is not required.
    • 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.
    • For transferring a judge other than the Chief Justice, the Chief Justice of India should take the views of the Chief Justice of the court concerned, as well as the Chief Justice of the court to which the transfer is taking place.
    • CJI should also take into account the views of one or more Supreme Court judges who are in a position to offer their views in the process of deciding whether a proposed transfer should take place.
  • Their 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.

 

Significance of Transfer of Judges in India

  • Exchange of talent: Transfer is needed for exchange of talent across the country and to prevent the emergence of local cliques in the judiciary.
  • Public interest: For better administration of justice throughout the country.

 

Concerns Associated with Transfer of Judges of High Court

  • Punitive Action: Transfer become controversial when the Bar or sections of the public feel that there is a punitive element behind the decision.
  • Lack of Transparency: Supreme Court and the government do not disclose the reason for a transfer.
  • Adverse opinions: Absence of a reason sometimes gives rise to speculation whether it was affected because of complaints against the judge, or if it was a sort of punishment for certain judgments that inconvenienced the executive.

 

Supreme Court Judgment on Transfer of Judges of India

  • Union of India vs. Sankal Chand Himatlal Sheth (1977): Supreme Court rejected the idea that High Court judges can be transferred only with their consent.
    • Transfer of power can be exercised only in public interest;
    • President is under an obligation to consult the Chief Justice of India.
    • Chief Justice of India had the right and duty to elicit and ascertain further facts from the judge concerned or others.
  • S.P. Gupta vs. President of India (1981) or First Judges Case: SC ruled that the consultation with the CJI did not mean ‘concurrence,’ thus giving primacy to the executive in the matter of appointments and transfers.
  • Second Judges Case (1993): It overruled the First Judges Case judgment.
    • The opinion of the CJI, formed after taking into account the views of senior-most judges, was to have primacy.
    • Since then, appointments are being made by the Collegium.
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