On Transfer of Judges – Collegium’s opacity is injurious to the institution’s health

Source: The post on Transfer of Judges has been created based on the article “Collegium’s opacity is injurious to the institution’s health” published in “Indian Express” on 24th November 2023.

UPSC Syllabus Topic: GS Paper 2 Indian Polity – Structure, organization and functioning of the Judiciary.

News: The article discusses _

Recently, various judges of High Courts have raised questions on their abrupt transfers by the Supreme Court (SC) Collegium.

Evolution of the Collegium system:

What are the issues with the procedure of transfer of judges by the Collegium?

1. Lack of Transparency: There is no official procedure or any written manual for the functioning of the Collegium. The parameters considered for transfers are not public, Moreover, the reasons for transfer are not communicated to the judges.
2. Impact on Judicial Efficiency: Frequent or abrupt transfers of judges can disrupt the functioning of courts, impacting the efficiency of the judicial system.
3. Lack of Constitutional Backing: The Collegium system is not prescribed by the Constitution. Article 124 only mentions consultation, which the SC interpreted as ‘concurrence’ in Second Judges Case (1993). Many consider this as judicial overreach.
4. Lack of Checks & Balance: There are no checks on the whole process (by the Executive or the Legislature).
5. Accusations of Impartiality: Critics of the system argue that near relatives, kith and kin of sitting Judges receive favourable treatment leading to nepotism (also called ‘Uncle Judges Syndrome’).

In which scenarios are transfers usually recommended by the Collegium?

One, a transfer is used for appointing Chief Justices or ensuring elevation to the SC.
For instance, a potential candidate for SC judgeship is usually sent to a large high court to be tested on judicial performance.

Two, Transfer of a judge is sometimes done as punitive action to deal with judges who do not conform to the expected or proper course of action as part of the judiciary.
This is because impeachment is the only remedy when questions of propriety are raised against a judge. Since it requires a very high degree of evidence and political will, judiciary sometimes resorts to transfers.

What should be done going ahead?

1. Establish a Defined Procedure: The Government and Judiciary should cooperate to finalize a defined procedure regarding judicial transfers. The Memorandum of Procedure should have clear guidelines for transparency like criteria, disclosure of reasons for transfer, mechanism for raising concerns, etc.
2. Reviving the National Judicial Appointments Commission (NJAC): NJAC was proposed as an alternative to the collegium system to ensure checks and balances. It would have representation from the judiciary, executive and eminent jurists and will be responsible for appointment and transfer of judges.

Question for practice:

Briefly outline the evolution of the Collegium system for appointment and transfer of judges in India. Critically analyse its working in the context of transfer of judges.