Transfers unexplained: On the transfer of High Court judges
Polity & Governance
3rd Dec, 2022
The Supreme Court Collegium headed by Chief Justice of India DY Chandrachud recommended the transfer of 7 judges of High Courts which have drawn arguments against its ‘Opaque procedure’.
Process of selection and transfer:
- The selection and transfer of Judges of the Supreme Court and High Court are done by President in consultation with the collegium system.
- In the case of selection and transfer of HC judges, the collegiums consisting of the CJI, 2 senior-most judges of the SC, and the CJ of the concerned High Courts.
Note: The proposal of NJAC to replace the collegium system was struck down by SC and after that, the executive is working on a New Memorandum of Procedures to reform the collegium system
- The initiation of the proposal for the transfer of a Judge should be made by the Chief Justice of India (CJI).
- The opinion of the CJI “is determinative”.
- CJI is expected to take into account the views of the Chief Justice of the High Court from which the Judge is to be transferred and the Chief Justice of the High Court to which the transfer is to be affected.
- The views of one or more Supreme Court Judges who are in a position to offer his/their views are also taken into account.
Article 222 of the Constitution makes provision for the transfer of a Judge (including the Chief Justice) from one High Court to any other High Court.
- In the case of the transfer of a Chief Justice, only the views of one or more knowledgeable Supreme Court Judges need to be taken into account.
- The views on the proposed transfer of a Judge or a Chief Justice of the High Court should be expressed in writing and should be considered by the CJI and the four senior-most Judges of the Supreme Court.
- The proposal once referred to the Government, the Union Minister of Law, Justice and Company Affairs would submit a recommendation to the Prime Minister who will then advise the President as to the transfer of the Judge concerned.
- After the President approves the transfer, the notification will be gazetted and the judge remains transferred.
Criteria for transfer:
- Lack of Transparency in the section on names for transfer of Judges.
- Political motive involved
- Judges have been transferred as a punishment for working against the Government in the State or either as a threatening act.
The transfer of judges is done in cases like:
- When a judge is appointed as Chief Justice he is generally transferred to another HC.
- In cases when a lawyer from the bar is appointed as Judge or when a judge is promoted to HC. These transfers are done to avoid instances of favoritism.
- Also in instances of any complaint of corruption or any other charge which does not lead to his impeachment, the judge is transferred to another High Court. These are called punishment transferring.