Power To Transfer High Court Judges: Explained

The recent decision of the Supreme Court Collegium transferring the Chief Justice of Madras High Court Justice Sanjib Banerjee to the Meghalaya High Court has again ruffled feathers of the legal fraternity. The recommendation of the collegium has drawn sharp criticism from various quarters of the legal fraternity. With this backdrop, let us understand the procedure to be followed for the transfer of High Court judges in India, the authority that is vested with the powers to recommend such transfers and whether the consent of the judges concerned is necessary. History of the Power As A.G.Noorani explains in this piece, the power to transfer high court judges was not present in the Government of India Act, 1935 or the first Draft of the Constitution.The power to transfer high court judges that came to be embodied in Art.222 was proposed by the Constituent Assmebly's Drafting Committee at the final revision stage in November 1949. Explaining why such a power would be required, Dr. B R Ambedkar had in a speech given in the Constituent Assembly said: "It might be necessary that one judge may be transferred from one High Court to another in order to strengthen the High Court elsewhere by importing better talents which may not be locally available. Secondly, it might be desirable to import a new Chief Justice because it might be desirable to have a man unaffected by local politics or local jealousies." Thus, in the Constitution that was finally adopted on 26th November, 1949, the power to transfer High Court Judges lay in Article 222 (1) of the Constitution of India. The Article reads that; "The President may, after consultation with the Chief Justice of India, transfer a Judge from one High Court to any other High Court." Art.222 is a briefly worded provision which does not mention the grounds or the procedure by way of which such power is to be exercised. If one peruses the Department of Justice's Memorandum for Transfer of High Court Judges, it can be seen that the recommendation to transfer judges must emanate from the Supreme Court Collegium consisting of the Chief Justice of India along with 4 senior-most judges of the Supreme Court. It must then be confirmed by an order of the President of India. How has this practice evolved when Art.222 (1) does not expressly mention it? The answer lies in the fact that Art.222 (1) has been subject to extensive interpretation over the years and understanding the historical context may be helpful to understand the contours of the power in the present day. Art.222 and the Three Judges Cases Like other provisions governing the appointment and transfer of judges, Art.222 has undergone a sea change over the course of three cases of the Supreme Court of India collectively known as the Three Judges Case- S.P. Gupta v. Union of India [AIR 1982 SC 149]; Supreme Court Advocates on Record Association v.Union of India [AIR 1994 SC 268] and In Re Special Reference 1 of 1998 [AIR 1999 SC 1]. In the Three Judges Cases, the primary question for the Apex Court's consideration was the meaning of the term "in consultation with the Chief Justice of India" used in both Art. 124 and Art.222 - that is, appointment and transfer of judges. The question was whether the term "consultation" would imply concurrence. In other words, what was the nature of the process involved in what the Constitution conceived as consultation by the President with the Chief Justice of India? What would be the minimum requirements and would it be sufficient for the President to apprise the Chief Justice of the proposed transfer and to await the reaction of the Chief Justice to the proposal. Beyond the semantics, the larger question to be determined was whether the Executive has primary over the issue of appointment of members of the higher judiciary. Before the Three Judges Cases, the interpretation of Art.222 came up in Union of India v Sankalchand Himatlal Sheth [ AIR 1977 SC 2328], where the validity of a Presidential notification transferring Sankalchand H from Gujarat to Andhra Pradesh High Court was challenged on the ground that the transfer was without the consent of the judge and consultation of the Chief Justice of India. A Constitution Bench held that transfer of judges can only be made in public interest and that any transfer which is not in public interest can be challenged in courts as ultra vires or without jurisdiction. On the question of consultation, the Court held that while consultation does not mean concurrence, there must be due deliberation between the Chief Justice and the President on each and every aspect concerning the transfer. The decision in Sankalchand was followed in S.P.Gupta v Union of India (First Judges Case), in which a 7-judge bench reaffirmed the requirements laid down in Sankalchand that transfers must be in the national interest and after consultation with the...

Power To Transfer High Court Judges: Explained

Sneha Rao

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