Shashwat Bhutani | Faculty of Law, University of Allahabad | 9th November 2019
INTRODUCTION
There has always been controversy regarding the transfer of a judge from one High Court to another. Article 222(1) of the Indian Constitution, empowers the President to transfer a judge from one High Court to another after consulting the Chief Justice of India. By giving a bare reading to this article, one can clearly infer that it (the article) is silent on a number of issues. This lack of clarity resulted in a scrimmage of power between the executive and the judiciary. Some of the imperative issues were:
- Whether the consent of a transferred judge is necessary?
- Whether transfer can be used as a punitive measure? and
- Whether the opinion of Chief Justice of India is binding?
During the emergency, sixteen High Court judges were transferred. It was contended that the government did so to punish those judges who gave decisions against them.
After the emergency, it was realized that these questions must be answered expeditiously in order to secure the independence of judiciary. The Supreme Court through its various judgements, tried to find a solution. The views of the judges, at times, differed, but their intention was the same, to secure the judiciary from the influence of the executive. The Court came out with various interpretations, all, either directing or restricting the role of executive in transfer matters.
However,
even today, when almost thirty-seven years have passed since the Sankalchand
Sheth’s case, there appears to be a lack of transparency regarding the
circumstances that warrant transfer of a judge. Some scholars believe,
it is the failure of the legislature to enact a policy in this regard which is
responsible for such outcry, while some believe, in addition to this, the wide
interpretation that can be given to the term “public interest” is responsible.
A recent case in this regard is the unexpected transfer of Justice Akhil
Abdulhamid Khureshi from Gujrat High Court to Bombay High Court. Justice
Khureshi enjoyed an honest reputation and was known for his bold attitude
towards the government. He was seen as a judicial hermit, who goes about his
work, unconcerned with the political consequences. In 2010, he gave custodial
remand of Amit Shah to CBI. In 2018, a bench headed by him upheld the
conviction of 19 accused in post-Godhra riots in Oad. Also, his dissent in
Goolrokh Gupta case is appreciated for its emphasis on secularism and personal
liberty.
Had he not been transferred he would have been the Acting Chief Justice of Gujrat High Court. But now, he stands at the 5th position in terms of seniority at Bombay High Court. His transfer was also condemned by the Gujrat High Court Advocates Association, which passed a unanimous resolution calling his transfer as “Unwarranted, uncalled and unexpected.”
It must be noted that Justice Khureshi is not the only judge who has fallen prey of a system that completely lacks transparency. Many other judges like Justice Jayant Patel, Justice Rajiv Shakdher, etc. were also victims of this system. The most recent being the resignation of former Madras High Court Chief Justice Vijay K. Tahilaramani, in her protest against the Supreme Court’s collegium’s decision to transfer her to Meghalaya High Court. This whole controversy can seen as a result of this lacuna in law.
CONSTITUTIONAL HISTORY
There used to be no provision in
the Government of India Act, 1935 related to
the transfer of judges from one high court to
another. Also, in the earlier stages of constitution-fashioning in the
constituent assembly, no specific attention was paid to
this topic. Neither the draft constitution prepared by
the constitutional advisor in October 1947 nor that prepared by the
drafting committee on 21st February 1948 contained any specific
provision in this regard. Clause (c) of
the draft Article193 (1)[1] simply
stated that ‘The office of a judge shall be vacated on his
being appointed to be a judge of the
Supreme Court or another High Court’. An amendment was also
moved in the assembly which provided “Every judge shall be liable to be
transferred to other High Courts.” However, this amendment was termed gratuitous by
the assembly considering the clause (c) of
the proviso.
Later on, the home ministry proposed
to establish a convention under which,
a proportion of judges of every High Court
will be from outside the state. However, the Drafting
Committee stated that there was no bar on
the recruitment of judges from
other states (provinces).
At the revision stage, the
Committee added a new draft Article 222,
which enabled the president to transfer a judge from
one High Court to another.
222. Transfer of a Judge from one High Court to another[2].-(1) The President may transfer a Judge from one High Court to any other High Court within the territory of India.
(2) When a judge is so transferred, he shall, during the period he serves as a judge of the other High Court, be entitled to receive in addition to his salary such compensatory allowance as may be determined by parliament by law and, until so determined, such compensatory allowance as the president may by order fix.
On 3rd November 1949, during the presentation of the draft constitution in the Constituent Assembly, the Drafting Committee wrote a letter to the President of the assembly, saying[3]:
Article 222(new). We have proposed the insertion of the new article to enable the President to transfer a Judge of a High Court to another. The present position in the constitution would not permit of any compensatory allowance being given to Judges on such transfer. Power has accordingly been reserved to parliament to determine by law the compensatory allowance to be paid in case they are so transferred, and Parliament so determine, to the president to fix by order the quantum of such allowance.
On 16th November 1949, an amendment was moved and adopted by the assembly which made it obligatory for the President to consult the Chief Justice of India, before making any transfer. It stated:[4]
222(1). The President may, after consultation with the Chief Justice of India, transfer a judge from one High Court to any other High Court within the territory of India.
Plotting the amendment, Dr Ambedkar said[5]:
We also took in the account the fact that this power of transfer of judges from one High Court to another may be abused. A provincial government might like to transfer a particular judge from its High Court because that judge had become very inconvenient to the provincial government by the particular attitude that he had taken with regard to the certain judicial matters, or that he had made a nuisance of himself by giving decisions which the provincial government did not like. We have taken care that in effecting these transfers, no such considerations ought to prevail. Transfers ought to take place only on the ground of convenience of the general administration. Consequently we have introduced a provision that such transfers shall take place in Consultaion with the Chief Justice of India who can be trusted to advice the government in a manner which is not affected by local or personal prejudices.
JUDICIAL INTERPRETATIONS
The question of transfer of High Court Judges was for the first time raised in the case of Union of India vs Sankal Chand Himatlal Sheth[6]. In this case, the constitutionality of a Presidential notification, by which Justice Sankalchand Seth of Gujarat High Court was transferred to Andhra Pradesh High Court was challenged on the ground that the said order was passed without the consent of the judge and against public interest and without effective consultation of the Chief Justice of India. However, before the court gave its decision, a settlement was reached between the parties. The government admitted that there was no justification for transferring Justice Sheth from Gujrat High Court.
As regard the interpretation of Article 222, the court was divided in its opinion. The majority consisted of Justice Y.V Chandrachud, Justice V.R. KRISHNAIYER and Justice Syed Murtafa Fazalali. They interpreted the article in its literal sense and held that the consent of the transferred judge is not necessary.
Justice Krishnaiyer and Justice Fazalali, rejected the contentions seeking provisions for mandatory consent of the judge and gave following reasons:
If the transfer of a judge is tantamount to his de novo appointment, a second time, there should be consultation with the Chief Justice and the government of the State to which he is transferred. Article 222 does not visualize such second consultation and neither side has a case that such protocol was adhered to ever before. Nor is a fresh warrant of appointment issued. Secondly, the Government of India Act, 1935 and the draft Constitution did not provide for transfer of judges but only their appointment in any other High Court. Then why did the makers of the Constitution deliberately depart specially to include the provision for transfer unless it be that it was meant to vest this additional power in sharp contrast to the earlier limited power to appoint in another High Court’ Thirdly, whenever consent of the judge is contemplated, it is specifically stated e.g. Art. 224A, and its omission in Article 222 is a pointer to the nonconsensual sense. And when a constitutional provision, introduced by design and unambiguous in ‘service’ terminology, falls for construction, instruction about the setting is useful but interpretation by the judges to undo what was done by the authors is not right. We agree.
Justice Bhagwati and Justice Untwalia, however differed with the majoritarian view. They believed that in order to preserve the judicial integrity and independence, the consent of the transferring judge is necessary.
The reasons given by Justice Bhagwati were:
- It cannot be disputed that the transfer of a Judge from one High Court to another would ordinarily inflict personal injuries on him.
- If, on a proper construction of cl. (1) of Article 222, the power of transfer could be exercised by the executive and the High Court Judge could be transferred without his consent, it would be a highly dangerous power, because the executive would then have an unbridled charter to inflict injury on a High Court Judge.
- When a Judge is transferred from one High Court to another, be is appointed to the High Court to which he is transferred and it is only when he assumes charge of the office of Judge of that High Court by making and subscribing an oath or affirmation before the Governor of the State, that he ceases to be a Judge of the High Court from where he is transferred. Now, it is difficult to believe that the con- stitution-makers could have ever intended that appointment of a Judge to a High Court or to the Supreme Court could be made without his consent. How would such appointment become effective unless the Judge who is appointed makes and subscribes an oath or affirmation before the Governor, in case of appointment to the High Court and before the President, in case of appointment to the Supreme Court. And that would plainly be a matter within the volition of the Judge. It is, therefore, obvious that the volition of the Judge who is transferred is essential for making the transfer effective and there can be no transfer of a Judge of a High Court without his consent.
With regards to the safeguard against the misuse of power by the executive, the court held that consultation with Chief Justice of India must be full and effective. The reason behind supplying such weight to the opinion of CJI, was best described by Justice Chandchud. He said:
Article 222(1) which requires the President to consult the Chief Justice of India is founded on the principle, that in a matter which concerns the judiciary vitally, no decision ought to be taken by the executive without obtaining the views of the Chief Justice of India who, by training and experience, is in the best position to consider the situation fairly, competently and objectively.
The court also emphasized that while consulting the Chief Justice of India, the President must make all the relevant data available to him on the basis of which he can form his opinion.
Regarding the punitive nature of transfer, the court said, a High Court judge can be punished only according to Article 217(1) read with Article 124(4). Thus, the transfer of a judge ought not be made as a punishment. However, a transfer can be made, only when public interest demands.
The question of transfer of judges again came before the Supreme Court in S.P. Gupta vs Union of India[7]. In this case, the validity of a circular letter, issued by the Union Law Ministry, asking the Chief Ministers of various states to obtain the advance consent of sitting additional judges and future incumbents for their respective transfer and appointment in a High Court, in order to maintain a proportion of at least 1:3 in terms of the number of judges from within and outside the state in a given High Court, was challenged. A seven-judge bench of the Supreme Court by a majority of 4:3 upheld the validity of the said circular. The majority also negated the contention that the process envisaged by the circular letter involves transfer, as contemplated in Article 222 (1). However, among the majority, Justice Bhagwati and Justice Desai., were of the view that the circular letter was without any legal force.
Furthermore, the majority upheld the transfer of Justice K.B.N Singh from Patna High Court to Madras High Court on the ground that the said transfer was made in public interest and not as a means of punishment.
Justice Bhagwati, however, retained his views of Sankalchand’s case and ruled that a Judge cannot be transferred without his consent. He said “…prior consent of the judge transferred is the only effective safeguard against the unfettered power of the executive under Article 222(1).” But he concurred with the majority on the point that transfer of a judge must be made only in public interest. He ruled the transfer of Justice K.B.N Singh from Patna High Court to Madras High Court as bad in law because he believed that the said transfer was made without the prior consent of the judge and was not in public interest. Justice Desai and Justice Fazalali also joined him in terming the said transfer bad, however they did not agree with him on his view that “consent of the transferred judge is necessary”.
The question of transfer of High Court judges was again considered by the Supreme Court in Supreme Court Advocates on Record Association vs Union of India[8]. Here, the court ruled that the opinion of Chief Justice of India must not only be given primacy, rather it should have determinative character.
In Dalpat Raj Bhandari, Advocate vs Union of India[9] the Supreme Court retained the above proposition that only a transferred judge can challenge his transfer and no other person can do so. The court said “…no one other than the transferred Judge himself can question the validity of a transfer.”
In the case of K.Ashok Reddy vs Government of India[10], it was contended that a judicial review must be permissible in case of transfer of judges. The petitioner relied on the fact that judicial review, being a basic feature of the constitution, must be made available in case of transfer of judges. However, the court rejected this contention on the ground thatprimacy of the judiciary in the matter of appointments and its determinative nature in transfer, introduces the judicial element in the process, which is sufficient justification for the absence of the need for further judicial review of those decisions. Moreover, the plurality of Judges in the formation of the opinion of the Chief Justice of India is another inbuilt check against the likelihood of arbitrariness or bias. Since, the judicial element is predominant in the case of appointments there is no need for judicial review.
At the same time, the court also laid down guidelines for the Chief Justice of India before forming his opinion. The said that in the formation of his opinion, the Chief Justice of India, in the case of transfer of a Judge other than the Chief Justice, he has to take into account the views of the Chief Justice of the High Court from which the Judge is to be transferred, any Judge of the Supreme Court whose opinion may be of significance in that case, as well as the views of at least one other senior Chief Justice of a High Court, or any other person whose views are considered relevant by the Chief Justice of India.
In Re presidential reference[11]. On 23rd July 1998 former President K.R. Narayanan, made a reference to the Supreme Court under Article 143 of the constitution, seeking clarity on Court’s interpretation on appointment and transfer of judges. The Court agreed to further elucidate its rulings and now maintains that, “Before recommending the transfer of a puisne Judge of one High Court to another High Court, also as a puisne Judge, the Chief Justice of India must consult a plurality of Judges”. It included the views of the Chief Justice of the High Court from which the proposed transfer is to be effected as also the Chief Justice of the High Court to which the transfer is to be effected. This was in accordance with the majority judgment in the second Judges case which postulates consultation with the Chief Justice of another High Court. The Chief Justice of India also takes into account the views of one or more Supreme Court Judges who are in a position to provide material which would assist in the process of deciding whether or not a proposed transfer should take place.
The Court further added these views must be expressed in writing and should be considered by the Chief Justice of India and the four seniormost puisne Judges of the Supreme Court. These views and those of each of the four seniormost puisne Judges should be conveyed to the Government of India along with the proposal of transfer. Unless the decision to transfer has been taken in the manner aforestated, it is not decisive and does not bind the Government of India.
Because of these safeguards, the court limited the scope of judicial review in this matter.
THE NATIONAL JUDICIAL APPOINTMENTS COMMISSION ACT, 2014
The National Judicial
Appointment Commission Act, 2014 seeked to provide the procedure which was to
be followed by the National Judicial Appointments Commission for recommending
persons for their appointment as Chief Justice of India, Judges of the
Supreme Court, Chief Justices
and Judges of various High Courts and for their transfers. The Section 9 of this act provided for the Commission to recommend
the transfer of Chief Justices and other Judges of High Courts from one High
Court to any other High Court, and for this purpose to specify, by regulations,
the procedure of such transfer. The act further provided that the National
Judicial Appointments Commission may make regulations inter alia specifying
the procedure for transfer
of Judges from one High Court to another High Court.
NJAC CASE, 2015[12]
The decision of the court can be summed up as follows: –
- Section 3 of the act bestows the power on NJAC under Article 124B and provide for composition of the Commission under Article 124A which gives a prominent role to the Law Minister and two eminent persons equal to the CJI in recommending appointments of CJI, Judges of Supreme Court, Chief Justices and Judges of the High Courts and also recommending transfer of Chief Justices and Judges of the High Courts are unconstitutional.
- Power to appoint and transfer judges of superior courts by the Executive hampers the independence of judiciary and is not conducive to the democratic values of enshrined in the Constitution. Appointment of judges of the Supreme Court and appointment or transfer of judges of the High Courts can be influenced to greater extent by the Law Minister and two nominated members, thereby affecting the independence of judiciary which happens to be the basic structure of Constitution of India.
- Chief Justices of the High Courts are not a member of the Commission and have no Constitutional role in appointment or transfer of judges of the High Courts.
- The transfer of Judges from one High Court to another High Court
is made by the
President after consultation with the Chief Justice of India under clause (1) of article 222 of the Constitution.
- The system of transfer of Chief Justices and Judges of High Courts from one High Court, to another, as existing prior to the Constitution (Ninety-ninth Amendment) Act, 2014 (called the collegium system), is declared to be operative; and to consider introduction of appropriate measures, if any, for an improved working of the collegium system.
CONCLUSION
After the Supreme Court’s judgments on appointments and transfer of judges in 1982, 1983, 1998 and 2015, the government became almost powerless in this regard. The power now rests with the collegium of judges. The apathy of almost every government towards these judges is understandable. But after fighting for its supremacy, has the collegium warped under the government pressure? Or is this just a huge coincidence. The situation is unclear. But one thing is certain, the absence of a law governing the transparency in the system is the root cause of the whole problem.
It should be understood that the collegium system has its own limitations and disadvantages. First and foremost, the collegium system is nowhere mentioned in the constitution. It was evolved by the judiciary’s own initiatives. It is thus looked upon as a highly undemocratic institution for a country like India. Secondly, this system is considered a failure when it comes to filling up of the vacancies of judges. Although it is not correct to entirely blame the collegium for its failure to fill the vacancies, because the element of malice on the part of the executive can also be traced. Thirdly, it is tainted with nepotism. In the year 2009, The Law Commission of India made a statement that nepotism and personal patronage is prevalent in the functioning of the Collegium System. Even the judges who passed the judgements in favor of collegium, rued their decision. In 2009, Fali Nariman, who was one of those who won the Second Judges case, said that he regretted winning the case since the collegium hadn’t lived up to expectations. Also, the former CJI JS Verma, who was the author of the main judgment also regretted saying that what he had envisaged was not primacy of the judiciary in appointments/transfers, but a more effective government consultation with the CJI instead of just a token one.
What is to be understood is that the collegium is
not a permanent system that can work indefinitely. It has to be replaced by a
proper governing body. It is the duty of the legislature to enact a law in this
regard and the failure of which has worsened the situation. Again, the law has
to be consistent with the spirit of the constitution, else it would be
nullified as in case of NJAC. Till such a law is formed, the fate of many more
judges is at stake.
[1] Draft Constitution of India, 1948
[2] Volume 4, Framing of India’s Constitution 750 (B. Shiv Rao ed., 2015)
[3] Volume 4, Framing of India’s Constitution 760 ( B. Shiv Rao ed.,2015)
[4] Constituent Assembly Debates (Proceedings), Vol. XI, Wednesday Nov.16, 1949
[5] Ibid
[6] AIR 1977 SC 2328
[7] AIR 1982 SC 149
[8] AIR 1994 SC 268
[9] 1995 Supp (1) SCC 682
[10] 1994 AIR 1207
[11] AIR 1999 SC 1
[12] Supreme Court Advocates-on-Record Assn. v. Union of India, (2016) 5 SCC 1
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