About transferring the judges: The Bar and the Bench

Source: The post is based on the article “The Bar and the Bench” published in the Indian Express on 22nd November 2022.

Syllabus: GS-2 – Structure, organization and functioning of the Executive and the Judiciary.

Relevance: About transferring the judges of High Courts.

News: The transfers of high court judges, especially from Gujarat and Andhra Pradesh High Courts once again stirred the debate on transferring the judges.

What does the constitution say about the transfer of high court judges?

Article 222 deals with the transfer of a judge from one high court to another by the President after consultation with the CJI.

What are the concerns associated with transferring the judges?

The desire to protect the independence of the judiciary was the bedrock of the Supreme Court. This is evident by its decision in 2016 to declare the Constitution (99th Amendment) Act, including Article 124 A of the Constitution as unconstitutional.

But transferring of judges like the recent one from the collegium have raised serious doubt about their intentions to protect the independence of the judiciary.

What needs to be done while transferring the judges?

According to Justice J S Verma, a) Constitutional functionaries, who are involved in the process of appointing superior judges, have to “be fully alive to the serious implications of their constitutional obligations and be zealous in its discharge in order to ensure that no doubtful appointment can be made”, b) The primacy of the CJI and of the HCs was to ensure the best suitability and eliminate political influences, c) The personal factors relating to the judge concerned, and his response to the proposal, including his preference of places of transfer, should be taken into account by the Chief Justice of India before forming his final opinion.

Further, the CJI must take the views of those senior members of the Bar who can express views which may be considered relevant.