Flaws in the system

News: The transfer of Chief Justice Sanjib Banerjee from the Madras High Court to the Meghalaya High Court has given rise to a controversy.

What is the Constitutional provision 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.

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

In Union of India vs. Sankalchand Himatlal Sheth(1977):

-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 the public interest.

-The President is under an obligation to consult the CJI which meant that all relevant facts must be placed before the CJI.

-The CJI 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’, the Supreme Court by 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) where also the concept of a ‘Collegium of Judges’ came into being. That is the opinion of the CJI ought to mean the views of a plurality of judges.

What is the current procedure for transfers?

In the collegium era, the proposal for transferring a High Court judge, including a Chief Justice, should be initiated by the CJI.

The consent of the judge is not required. “All transfers are to be made in the public interest, i.e., for promoting better administration of justice throughout the country.

For transferring a judge other than the Chief Justice, the CJI should take the views of the Chief Justices of the two High courts concerned.

The CJI should also take into account the views of one or more Supreme Court judges in the process of deciding whether a proposed transfer should take place.

-In the case of transfer of a Chief Justice, only the views of one or more knowledgeable Supreme Court judges need to be taken.

The views should all be expressed in writing, and they should be considered by the CJI and four
senior-most judges of the Supreme Court- Collegium of five.

The recommendation is sent to the Union Law Minister who should submit the relevant papers to the Prime Minister who then advises the President on approving the transfer.

What makes transfers controversial?

The accusation of the Punitive element in the transfer of judges makes the transfer controversial.

Not disclosing the reason for a transfer, as disclosure could impinge on the judge’s performance and independence in the court.

-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.

Source: This post is based on the article “Flaws in the system” published in The Hindu on 21 November 2021.