The transfer of Chief Justice Sanjib Banerjee from the Madras High Court to the Meghalaya High Court has given rise to a controversy over the question of whether judicial transfers are made only for administrative reasons or have any element of ‘punishment’ behind them.
Transfer of judges and the Constitution
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.
This means that the executive could transfer a judge, but only after consulting the Chief Justice of India.
From time to time, there have been proposals that one-third of the composition of every High Court should have judges from other States.
What is the Supreme Court’s view on the issue?
Union of India vs. Sankalchand Himatlal Sheth (1977)
The 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 public interest.
It held that the President is under an obligation to consult the CJI, which meant that all relevant facts must be placed before the CJI.
It ruled CJI had the right and duty to elicit and ascertain further facts from the judge concerned or others.
S.P. Gupta vs. President of India, 1981 (First Judges Case)
It considered the validity of the transfer Judges as well as a circular from the Law Ministry.
The Ministry had put that additional judge in all High Courts may be asked for their consent to be appointed as permanent judges in any other High Court, and to name three preferences.
The Minister’s reasoning was that such transfers would promote national integration and help avoid parochial tendencies bred by caste, kinship and other local links and affiliations.
The majority ruled that consultation with the CJI did not mean ‘concurrence’ with respect to appointments.
SCARA Vs Union of India, 1993 (Second Judges Case)
In effect, it emphasized the primacy of the executive in the matter of appointments and transfers.
However, this position was overruled in the ‘Second Judges Case’ (1993).
The opinion of the CJI, formed after taking into account the views of senior-most judges, was to have primacy.
Since then, appointments are being made by the Collegium.
Current procedure for transfers
As one of the points made by the ‘Second Judges Case’ was that the opinion of the CJI ought to mean the views of a plurality of judges, the concept of a ‘Collegium of Judges’ came into being.
In the collegium era, the proposal for transferring a High Court judge, including a Chief Justice, should be initiated by the Chief Justice of India, “whose opinion in this regard is determinative”.
The consent of the judge is not required.
All transfers are to be made in 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 CJ of the court concerned, as well as the CJ of the court to which the transfer is taking place.
The CJI should also take into account the views of one or more Supreme Court judges who are in a position to offer their views.
In the case of transfer of a Chief Justice, only the views of one or more knowledgeable Supreme Court judges need to be taken into account.
Provision for Written Recommendation
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, which means, the full Collegium of five.
The recommendation is sent to the Union Law Minister who should submit the relevant papers to the Prime Minister.
The PM then advises the President on approving the transfer.
What makes transfers controversial?
Punitive intent: Transfer orders become controversial when the Bar or sections of the public feel that there is a punitive element behind the decision to move a judge from one High Court to another.
No disclosure of reasons: As a matter of practice, the Supreme Court and the government do not disclose the reason for a transfer.
Adverse opinions behind: For, if the reason is because of some adverse opinion on a judge’s functioning, disclosure would impinge on the judge’s performance and independence in the court to which he is transferred.