{"id":331,"date":"2020-04-23T10:29:48","date_gmt":"2020-04-23T10:29:48","guid":{"rendered":"http:\/\/lexforti.com\/legal-news\/?p=331"},"modified":"2021-01-17T11:58:45","modified_gmt":"2021-01-17T11:58:45","slug":"transfer-of-judges-the-opacity","status":"publish","type":"post","link":"https:\/\/lexforti.com\/legal-news\/transfer-of-judges-the-opacity\/","title":{"rendered":"Transfer of Judges: The Opacity"},"content":{"rendered":"\n<p><strong> Shashwat Bhutani | Faculty of Law, University of Allahabad | 9th November 2019<\/strong><\/p>\n\n\n\n<div id=\"ez-toc-container\" class=\"ez-toc-v2_0_47_1 counter-hierarchy ez-toc-counter ez-toc-grey ez-toc-container-direction\">\n<div class=\"ez-toc-title-container\">\n<p class=\"ez-toc-title\">Table of Contents<\/p>\n<span class=\"ez-toc-title-toggle\"><a href=\"#\" class=\"ez-toc-pull-right ez-toc-btn ez-toc-btn-xs ez-toc-btn-default ez-toc-toggle\" aria-label=\"ez-toc-toggle-icon-1\"><label for=\"item-6a3268eb82ffe\" aria-label=\"Table of Content\"><span style=\"display: flex;align-items: center;width: 35px;height: 30px;justify-content: center;direction:ltr;\"><svg style=\"fill: #999;color:#999\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" class=\"list-377408\" width=\"20px\" height=\"20px\" viewBox=\"0 0 24 24\" fill=\"none\"><path d=\"M6 6H4v2h2V6zm14 0H8v2h12V6zM4 11h2v2H4v-2zm16 0H8v2h12v-2zM4 16h2v2H4v-2zm16 0H8v2h12v-2z\" fill=\"currentColor\"><\/path><\/svg><svg style=\"fill: #999;color:#999\" class=\"arrow-unsorted-368013\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" width=\"10px\" height=\"10px\" viewBox=\"0 0 24 24\" version=\"1.2\" baseProfile=\"tiny\"><path d=\"M18.2 9.3l-6.2-6.3-6.2 6.3c-.2.2-.3.4-.3.7s.1.5.3.7c.2.2.4.3.7.3h11c.3 0 .5-.1.7-.3.2-.2.3-.5.3-.7s-.1-.5-.3-.7zM5.8 14.7l6.2 6.3 6.2-6.3c.2-.2.3-.5.3-.7s-.1-.5-.3-.7c-.2-.2-.4-.3-.7-.3h-11c-.3 0-.5.1-.7.3-.2.2-.3.5-.3.7s.1.5.3.7z\"\/><\/svg><\/span><\/label><input  type=\"checkbox\" id=\"item-6a3268eb82ffe\"><\/a><\/span><\/div>\n<nav><ul class='ez-toc-list ez-toc-list-level-1 ' ><li class='ez-toc-page-1 ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-1\" href=\"https:\/\/lexforti.com\/legal-news\/transfer-of-judges-the-opacity\/#INTRODUCTION\" title=\"INTRODUCTION\">INTRODUCTION<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-2\" href=\"https:\/\/lexforti.com\/legal-news\/transfer-of-judges-the-opacity\/#CONSTITUTIONAL_HISTORY\" title=\"CONSTITUTIONAL\nHISTORY\">CONSTITUTIONAL\nHISTORY<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-3\" href=\"https:\/\/lexforti.com\/legal-news\/transfer-of-judges-the-opacity\/#JUDICIAL_INTERPRETATIONS\" title=\"JUDICIAL\nINTERPRETATIONS \">JUDICIAL\nINTERPRETATIONS <\/a><ul class='ez-toc-list-level-6'><li class='ez-toc-heading-level-6'><ul class='ez-toc-list-level-6'><li class='ez-toc-heading-level-6'><a class=\"ez-toc-link ez-toc-heading-4\" href=\"https:\/\/lexforti.com\/legal-news\/transfer-of-judges-the-opacity\/#The_reasons_given_by_Justice_Bhagwati_were\" title=\"The reasons\ngiven by Justice Bhagwati were:\">The reasons\ngiven by Justice Bhagwati were:<\/a><\/li><\/ul><\/li><\/ul><\/li><li class='ez-toc-page-1 ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-5\" href=\"https:\/\/lexforti.com\/legal-news\/transfer-of-judges-the-opacity\/#THE_NATIONAL_JUDICIAL_APPOINTMENTS_COMMISSION_ACT_2014\" title=\"THE NATIONAL JUDICIAL\nAPPOINTMENTS COMMISSION ACT, 2014\">THE NATIONAL JUDICIAL\nAPPOINTMENTS COMMISSION ACT, 2014<\/a><ul class='ez-toc-list-level-6'><li class='ez-toc-heading-level-6'><ul class='ez-toc-list-level-6'><li class='ez-toc-heading-level-6'><a class=\"ez-toc-link ez-toc-heading-6\" href=\"https:\/\/lexforti.com\/legal-news\/transfer-of-judges-the-opacity\/#NJAC_CASE_201512\" title=\"NJAC CASE, 2015[12]\">NJAC CASE, 2015[12]<\/a><\/li><\/ul><\/li><\/ul><\/li><li class='ez-toc-page-1 ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-7\" href=\"https:\/\/lexforti.com\/legal-news\/transfer-of-judges-the-opacity\/#CONCLUSION\" title=\"CONCLUSION\">CONCLUSION<\/a><\/li><\/ul><\/nav><\/div>\n<h4 class=\"wp-block-heading\"><span class=\"ez-toc-section\" id=\"INTRODUCTION\"><\/span><strong>INTRODUCTION<\/strong><span class=\"ez-toc-section-end\"><\/span><\/h4>\n\n\n\n<p>There\nhas always been controversy regarding the transfer of a judge from one High\nCourt to another. Article 222(1) of the Indian Constitution, empowers the\nPresident to transfer a judge from one High Court to another after consulting\nthe Chief Justice of India. By giving a bare reading to this article, one can\nclearly infer that it (the article) is silent on a number of issues. This lack of\nclarity resulted in a scrimmage of power between the executive and the\njudiciary. Some of the imperative issues were:<\/p>\n\n\n\n<ul><li>Whether the consent of a\ntransferred judge is necessary?<\/li><li>Whether transfer can be used as a\npunitive measure? and<\/li><li>Whether the opinion of Chief\nJustice of India is binding?<\/li><\/ul>\n\n\n\n<p>During\nthe emergency, sixteen High Court judges were transferred. It was contended\nthat the government did so to punish those judges who gave decisions against\nthem.<\/p>\n\n\n\n<p>After\nthe emergency, it was realized that these questions must be answered\nexpeditiously in order to secure the independence of judiciary. The Supreme\nCourt through its various judgements, tried to find a solution. The views of\nthe judges, at times, differed, but their intention was the same, to secure the\njudiciary from the influence of the executive. The Court came out with various\ninterpretations, all, either directing or restricting the role of executive in\ntransfer matters. <\/p>\n\n\n\n<p>However,\neven today, when almost thirty-seven years have passed since the <em>Sankalchand\nSheth\u2019s case, <\/em>there appears to be a lack of transparency regarding the\ncircumstances that warrant transfer of a judge. Some scholars believe,\nit is the failure of the legislature to enact a policy in this regard which is\nresponsible for such outcry, while some believe, in addition to this, the wide\ninterpretation that can be given to the term \u201cpublic interest\u201d is responsible.<br>\nA recent case in this regard is the unexpected transfer of Justice Akhil\nAbdulhamid Khureshi from Gujrat High Court to Bombay High Court. Justice\nKhureshi enjoyed an honest reputation and was known for his bold attitude\ntowards the government. He was seen as a judicial hermit, who goes about his\nwork, unconcerned with the political consequences. In 2010, he gave custodial\nremand of Amit Shah to CBI. In 2018, a bench headed by him upheld the\nconviction of 19 accused in post-Godhra riots in Oad. Also, his dissent in\nGoolrokh Gupta case is appreciated for its emphasis on secularism and personal\nliberty.<\/p>\n\n\n\n<p>Had\nhe not been transferred he would have been the Acting Chief Justice of Gujrat\nHigh Court. But now, he stands at the 5th position in terms of seniority at\nBombay High Court. His transfer was also condemned by the Gujrat High Court\nAdvocates Association, which passed a unanimous resolution calling his transfer\nas \u201cUnwarranted, uncalled and unexpected.\u201d<\/p>\n\n\n\n<p>It\nmust be noted that Justice Khureshi is not the only judge who has fallen prey\nof a system that completely lacks transparency. Many other judges like Justice\nJayant Patel, Justice Rajiv Shakdher, etc. were also victims of this system.\nThe most recent being the resignation of former Madras High Court Chief Justice Vijay K. Tahilaramani, in her\nprotest against the Supreme Court\u2019s collegium&#8217;s decision to transfer her to\nMeghalaya High Court. This whole controversy can seen as a result of this lacuna in law.<\/p>\n\n\n\n<h4 class=\"wp-block-heading\"><span class=\"ez-toc-section\" id=\"CONSTITUTIONAL_HISTORY\"><\/span><strong>CONSTITUTIONAL\nHISTORY<\/strong><span class=\"ez-toc-section-end\"><\/span><\/h4>\n\n\n\n<p>There\u00a0used\u00a0to\u00a0be\u00a0no\u00a0provision\u00a0in\nthe Government of India Act, 1935 related to\nthe\u00a0transfer\u00a0of\u00a0judges\u00a0from one high court to\nanother.\u00a0Also, in the earlier stages of constitution-fashioning in the\nconstituent assembly, no specific attention was\u00a0paid\u00a0to\nthis\u00a0topic.\u00a0Neither the\u00a0draft\u00a0constitution\u00a0prepared\u00a0by\nthe constitutional advisor in October 1947 nor that\u00a0prepared\u00a0by the\ndrafting committee on 21<sup>st<\/sup> February 1948 contained any specific\nprovision in this\u00a0regard.\u00a0Clause\u00a0(c)\u00a0of\nthe\u00a0draft\u00a0Article193\u00a0(1)<a href=\"#_ftn1\">[1]<\/a>\u00a0simply\nstated that &#8216;The office of a\u00a0judge\u00a0shall be\u00a0vacated\u00a0on his\nbeing\u00a0appointed\u00a0to\u00a0be\u00a0a\u00a0judge\u00a0of the\nSupreme\u00a0Court\u00a0or another\u00a0High Court&#8217;.\u00a0An amendment was also\nmoved in the assembly which provided \u201cEvery judge shall be liable to be\ntransferred to other High Courts.&#8221;\u00a0However, this\u00a0amendment\u00a0was\u00a0termed\u00a0gratuitous\u00a0by\nthe\u00a0assembly\u00a0considering\u00a0the clause\u00a0(c)\u00a0of\nthe\u00a0proviso.<br>\nLater on, the home ministry proposed\nto\u00a0establish\u00a0a\u00a0convention\u00a0under which,\na\u00a0proportion\u00a0of\u00a0judges\u00a0of every High Court\nwill\u00a0be\u00a0from outside the\u00a0state.\u00a0However, the Drafting\nCommittee\u00a0stated\u00a0that there\u00a0was\u00a0no\u00a0bar\u00a0on\nthe\u00a0recruitment\u00a0of\u00a0judges\u00a0from\nother\u00a0states\u00a0(provinces).<br>\nAt the revision stage, the\nCommittee\u00a0added\u00a0a new draft Article 222,\nwhich\u00a0enabled\u00a0the\u00a0president\u00a0to\u00a0transfer\u00a0a\u00a0judge\u00a0from\none High Court to another.<\/p>\n\n\n\n<p><strong>222. Transfer\nof a Judge from one High Court to another<\/strong><a href=\"#_ftn2\">[2]<\/a><strong>.-<\/strong>(1) The President may transfer a Judge from one\nHigh Court to any other High Court within the territory of India.<\/p>\n\n\n\n<p>(2) When a judge is so transferred, he shall,\nduring the period he serves as a judge of the other High Court, be entitled to\nreceive in addition to his salary such compensatory allowance as may be\ndetermined by parliament by law and, until so determined, such compensatory\nallowance as the president may by order fix.<\/p>\n\n\n\n<p>On 3<sup>rd<\/sup> November 1949, during the presentation of\nthe draft constitution in the Constituent Assembly, the Drafting Committee\nwrote a letter to the President of the assembly, saying<a href=\"#_ftn3\">[3]<\/a>:<\/p>\n\n\n\n<p><strong>Article\n222(new). <\/strong>We have proposed the insertion of the new article\nto enable the President to transfer a Judge of a High Court to another. The\npresent position in the constitution would not permit of any compensatory\nallowance being given to Judges on such transfer. Power has accordingly been\nreserved to parliament to determine by law the compensatory allowance to be\npaid in case they are so transferred, and Parliament so determine, to the\npresident to fix by order the quantum of such allowance.<\/p>\n\n\n\n<p>On 16<sup>th<\/sup> November 1949, an amendment\nwas moved and adopted by the assembly which made it obligatory for the\nPresident to consult the Chief Justice of India, before making any transfer. It\nstated:<a href=\"#_ftn4\">[4]<\/a><\/p>\n\n\n\n<p><strong>222(1).<\/strong> The President may, after consultation with the\nChief Justice of India, transfer a judge from one High Court to any other High\nCourt within the territory of India.<\/p>\n\n\n\n<p>\u00a0Plotting the\namendment, Dr Ambedkar said<a href=\"#_ftn5\">[5]<\/a>:\n<\/p>\n\n\n\n<p>We also took in the account the fact that this\npower of transfer of judges from one High Court to another may be abused. A\nprovincial government might like to transfer a particular judge from its High\nCourt because that judge had become very inconvenient to the provincial\ngovernment by the particular attitude that he had taken with regard to the\ncertain judicial matters, or that he had made a nuisance of himself by giving\ndecisions which the provincial government did not like. We have taken care that\nin effecting these transfers, no such considerations ought to prevail.\nTransfers ought to take place only on the ground of convenience of the general\nadministration. Consequently we have introduced a provision that such transfers\nshall take place in Consultaion with the Chief Justice of India who can be\ntrusted to advice the government in a manner which is not affected by local or\npersonal prejudices.<\/p>\n\n\n\n<h4 class=\"wp-block-heading\"><span class=\"ez-toc-section\" id=\"JUDICIAL_INTERPRETATIONS\"><\/span><strong>JUDICIAL\nINTERPRETATIONS <\/strong><span class=\"ez-toc-section-end\"><\/span><\/h4>\n\n\n\n<p>The\nquestion of transfer of High Court Judges was for the first time raised in the\ncase of <em>Union of India vs Sankal Chand\nHimatlal Sheth<a href=\"#_ftn6\"><strong>[6]<\/strong><\/a><\/em><strong>.<\/strong> In this case, the\nconstitutionality of a Presidential notification, by which Justice Sankalchand\nSeth of Gujarat High Court was transferred to Andhra Pradesh High Court was\nchallenged on the ground that the said order was passed without the consent of\nthe judge and against public interest and without effective consultation of the\nChief Justice of India. However, before the court gave its decision, a\nsettlement was reached between the parties. The government admitted that there\nwas no justification for transferring Justice Sheth from Gujrat High Court. <\/p>\n\n\n\n<p>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.<\/p>\n\n\n\n<p>Justice Krishnaiyer and Justice Fazalali,\nrejected the contentions seeking provisions for mandatory consent of the judge\nand gave following reasons:<\/p>\n\n\n\n<p>If the transfer of a judge is tantamount to his\nde novo appointment, a second time, there should be consultation with the Chief\nJustice and the government of the State to which he is transferred.\u00a0<a href=\"https:\/\/indiankanoon.org\/doc\/819787\/\">Article 222<\/a>\u00a0does\nnot visualize such second consultation and neither side has a case that such\nprotocol was adhered to ever before. Nor is a fresh warrant of appointment\nissued. Secondly, the Government of India Act, 1935 and the draft Constitution\ndid not provide for transfer of judges but only their appointment in any other\nHigh Court. Then why did the makers of the Constitution deliberately depart\nspecially to include the provision for transfer unless it be that it was meant\nto vest this additional power in sharp contrast to the earlier limited power to\nappoint in another High Court&#8217; Thirdly, whenever consent of the judge is\ncontemplated, it is specifically stated e.g.\u00a0<a href=\"https:\/\/indiankanoon.org\/doc\/237570\/\">Art. 224A<\/a>, and its omission in\u00a0<a href=\"https:\/\/indiankanoon.org\/doc\/819787\/\">Article 222<\/a>\u00a0is a\npointer to the nonconsensual sense. And when a constitutional provision,\nintroduced by design and unambiguous in &#8216;service&#8217; terminology, falls for\nconstruction, instruction about the setting is useful but interpretation by the\njudges to undo what was done by the authors is not right. We agree.<\/p>\n\n\n\n<p>Justice Bhagwati and Justice Untwalia,\nhowever differed with the majoritarian view. They believed that in order to\npreserve the judicial integrity and independence, the consent of the\ntransferring judge is necessary.<\/p>\n\n\n\n<h6 class=\"wp-block-heading\"><span class=\"ez-toc-section\" id=\"The_reasons_given_by_Justice_Bhagwati_were\"><\/span>The reasons\ngiven by Justice Bhagwati were:<span class=\"ez-toc-section-end\"><\/span><\/h6>\n\n\n\n<ol><li>It cannot be disputed that the transfer of a\nJudge from one High Court to another would ordinarily inflict personal injuries\non him.<\/li><li>If, on a proper construction of cl. (1) of\u00a0<a href=\"https:\/\/indiankanoon.org\/doc\/819787\/\">Article 222<\/a>, the power\u00a0of transfer could be exercised\nby the executive and the High Court Judge could be transferred without his\nconsent, it would be a highly dangerous power, because the executive would then\nhave an unbridled charter to inflict injury on a High Court Judge.<\/li><li>When a Judge is transferred from one High Court\nto another, be is appointed to the High Court to which he is transferred and it\nis only when he assumes charge of the office of Judge of that High Court by\nmaking and subscribing an oath or affirmation before the Governor of the State,\nthat he ceases to be a Judge of the High Court from where he is transferred.\nNow, it is difficult to believe that the con- stitution-makers could have ever\nintended that appointment of a Judge to a High Court or to the Supreme Court could\nbe made without his consent. How would such appointment become effective unless\nthe Judge who is appointed makes and subscribes an oath or affirmation before\nthe Governor, in case of appointment to the High Court and before the\nPresident, in case of appointment to the Supreme Court. And that would plainly\nbe a matter within the volition of the Judge. It is, therefore, obvious that\nthe volition of the Judge who is transferred is essential for making the\ntransfer effective and there can be no transfer of a Judge of a High Court\nwithout his consent.\u00a0<\/li><\/ol>\n\n\n\n<p>With regards to the safeguard against the misuse\nof power by the executive, the court held that consultation with Chief Justice\nof India must be <em>full and effective<\/em>.\nThe reason behind supplying such weight to the opinion of CJI, was best\ndescribed by Justice Chandchud. He said:<\/p>\n\n\n\n<p><a href=\"https:\/\/indiankanoon.org\/doc\/182777\/\">Article 222(1)<\/a>\u00a0which\nrequires the President to consult the Chief Justice of India is founded on the\nprinciple, that in a matter which concerns the judiciary vitally, no decision\nought to be taken by the executive without obtaining the views of the Chief\nJustice of India who, by training and experience, is in the best position to\nconsider the situation fairly, competently and objectively. <\/p>\n\n\n\n<p>The court also emphasized that while consulting\nthe Chief Justice of India, the President must make all the relevant data\navailable to him on the basis of which he can form his opinion.<\/p>\n\n\n\n<p>Regarding\u00a0the\u00a0punitive\u00a0nature\nof\u00a0transfer, the\u00a0court\u00a0said, a\u00a0High Court judge\u00a0can\nbe\u00a0punished\u00a0only\u00a0according\u00a0to\u00a0Article\u00a0217(1)\u00a0read\nwith\u00a0Article\u00a0124(4).\u00a0Thus, the\u00a0transfer\u00a0of\na\u00a0judge\u00a0ought\u00a0not be\u00a0made\u00a0as\na\u00a0punishment.\u00a0However, a\u00a0transfer\u00a0can be made, only when\npublic interest demands. <\/p>\n\n\n\n<p>The\nquestion of transfer of judges again came before the Supreme Court in <em>S.P. Gupta vs Union of India<a href=\"#_ftn7\"><strong>[7]<\/strong><\/a><\/em><strong>. <\/strong>In this case, the validity of\na circular letter, issued by the Union Law Ministry, asking the Chief Ministers\nof various states to obtain the advance consent of sitting additional judges\nand future incumbents for their respective transfer and appointment in a High\nCourt, in order to maintain a proportion of at least 1:3 in terms of the number\nof judges from within and outside the state in a given High Court, was\nchallenged. A seven-judge bench of the Supreme Court by a majority of 4:3\nupheld the validity of the said circular. \u00a0The majority also negated\nthe contention that the process envisaged by the circular letter involves\ntransfer, as contemplated in Article 222 (1). However, among the majority,\nJustice Bhagwati and Justice Desai., were of the view that the circular letter\nwas without any legal force. <\/p>\n\n\n\n<p>Furthermore, the majority upheld the\ntransfer of Justice K.B.N Singh from Patna High Court to Madras High Court on\nthe ground that the said transfer was made in public interest and not as a\nmeans of punishment. <\/p>\n\n\n\n<p>Justice Bhagwati,\nhowever, \u00a0retained his views of <em>Sankalchand\u2019s case <\/em>and ruled that a\nJudge cannot be transferred without his consent. He said \u201c\u2026prior consent of the\njudge transferred is the only effective safeguard against the unfettered power\nof the executive under Article 222(1).\u201d<strong> <\/strong>But he concurred with the majority on the point that\ntransfer of a judge must be made only in public interest. He ruled the transfer\nof Justice K.B.N Singh from Patna High Court to Madras High Court as bad in law\nbecause he believed that the said transfer was made without the prior consent\nof the judge and was not in public interest. Justice Desai and Justice Fazalali\nalso joined him in terming the said transfer bad, however they did not agree\nwith him on his view that \u201cconsent of the transferred judge is necessary\u201d.<\/p>\n\n\n\n<p>The question of\ntransfer of High Court judges was again considered by the Supreme Court in <em>Supreme Court Advocates\non Record Association vs Union of India<a href=\"#_ftn8\"><strong>[8]<\/strong><\/a>.\n<\/em>Here, the court ruled that the opinion of\nChief Justice of India must not only be given primacy, rather it should have\ndeterminative character. <\/p>\n\n\n\n<p>In <em>Dalpat Raj Bhandari, Advocate vs Union of India<\/em><a href=\"#_ftn9\"><em><strong>[9]<\/strong><\/em><\/a> the Supreme Court\nretained the above proposition that only a transferred judge can challenge his\ntransfer and no other person can do so. The court said \u201c\u2026no one other than the transferred Judge himself\ncan question the validity of a transfer.\u201d<\/p>\n\n\n\n<p>In the case of <em>K.Ashok Reddy vs Government of India<\/em><a href=\"#_ftn10\"><em><strong>[10]<\/strong><\/em><\/a>, it was contended that\na judicial review must be permissible in case of transfer of judges. The\npetitioner relied on the fact that judicial review, being a basic feature of\nthe constitution, must be made available in case of transfer of judges.\nHowever, the court rejected this contention on the ground thatprimacy of the\njudiciary in the matter of appointments and its determinative nature in\ntransfer, introduces the judicial element in the\u00a0process, which is\nsufficient justification for the absence of the need for further judicial\nreview of those decisions. Moreover, the plurality of Judges in the formation\nof the opinion of the Chief Justice of India is another inbuilt check against\nthe likelihood of arbitrariness or bias. Since, the judicial element is\npredominant in the case of appointments there is no need for judicial review. <\/p>\n\n\n\n<p>At the same time, the court also laid down\nguidelines for the Chief Justice of India before forming his opinion. The said\nthat in the formation of his opinion, the Chief Justice of India, in the case\nof transfer of a Judge other than the Chief Justice, he has \u00a0to take into account the views of the Chief\nJustice of the High Court from which the Judge is to be transferred, any Judge\nof the Supreme Court whose opinion may be of significance in that case, as well\nas the views of at least one other senior Chief Justice of a High Court, or any\nother person whose views are considered relevant by the Chief Justice of India.\n<\/p>\n\n\n\n<p>In<em> Re presidential reference<a href=\"#_ftn11\"><strong>[11]<\/strong><\/a>.<\/em><strong> <\/strong>On 23<sup>rd<\/sup>\nJuly 1998 former President K.R. Narayanan, made a reference to the Supreme\nCourt under Article 143 of the constitution, seeking clarity on Court\u2019s\ninterpretation on appointment and transfer of judges. The Court agreed to\nfurther elucidate its rulings and now maintains that, \u201cBefore recommending the\ntransfer of a puisne Judge of one High Court to another High Court, also as a\npuisne Judge, the Chief Justice of India must consult a plurality of Judges\u201d.\nIt included the views of the Chief Justice of the High Court from which the\nproposed transfer is to be effected as also the Chief Justice of the High Court\nto which the transfer is to be effected. This was in accordance with the\nmajority judgment in the second Judges case which postulates consultation with\nthe Chief Justice of another High Court. The Chief Justice of India also takes\ninto account the views of one or more Supreme Court Judges who are in a\nposition to provide material which would assist in the process of deciding\nwhether or not a proposed transfer should take place. <\/p>\n\n\n\n<p>The Court further added these views must be\nexpressed in writing and should be considered by the Chief Justice of India and\nthe four seniormost puisne Judges of the Supreme Court. These views and those\nof each of the four seniormost puisne Judges should be conveyed to the\nGovernment of India along with the proposal of transfer. Unless the decision to\ntransfer has been taken in the manner aforestated, it is not decisive and does\nnot bind the Government of India.<\/p>\n\n\n\n<p>Because of\nthese safeguards, the court limited the scope of judicial review in this\nmatter. <\/p>\n\n\n\n<h4 class=\"wp-block-heading\"><span class=\"ez-toc-section\" id=\"THE_NATIONAL_JUDICIAL_APPOINTMENTS_COMMISSION_ACT_2014\"><\/span><strong>THE NATIONAL JUDICIAL\nAPPOINTMENTS<\/strong><strong> COMMISSION ACT, 2014<\/strong><span class=\"ez-toc-section-end\"><\/span><\/h4>\n\n\n\n<p>The National Judicial\nAppointment Commission Act, 2014 seeked to provide the procedure which was to\nbe followed by the National Judicial Appointments Commission for recommending\npersons for their appointment as Chief Justice of India, Judges of the\nSupreme Court, Chief Justices\nand Judges of various High Courts and for their transfers. The Section 9 of this act provided for the Commission to recommend\nthe transfer of Chief Justices and other Judges of High Courts from one High\nCourt to any other High Court, and for this purpose to specify, by regulations,\nthe procedure of such transfer. The act further provided that the National\nJudicial Appointments Commission may make regulations <em>inter alia <\/em>specifying\nthe procedure for transfer<br>\nof Judges from one High Court to another High Court.<\/p>\n\n\n\n<h6 class=\"wp-block-heading\"><span class=\"ez-toc-section\" id=\"NJAC_CASE_201512\"><\/span><strong>NJAC CASE, 2015<\/strong><a href=\"#_ftn12\">[12]<\/a><strong><\/strong><span class=\"ez-toc-section-end\"><\/span><\/h6>\n\n\n\n<p>The decision of the court can be summed up as\nfollows: &#8211;<strong><\/strong><\/p>\n\n\n\n<ul><li>Section 3 of\nthe act bestows the power on NJAC under Article 124B and provide for\ncomposition of the Commission under Article 124A which gives a prominent role\nto the Law Minister and two eminent persons equal to the CJI in recommending\nappointments of CJI, Judges of Supreme Court, Chief Justices and Judges of the\nHigh Courts and also recommending transfer of Chief Justices and Judges of the\nHigh Courts are unconstitutional.<strong><\/strong><\/li><\/ul>\n\n\n\n<ul><li>Power to appoint and transfer judges of superior courts by the\nExecutive hampers the independence of judiciary and is not conducive to the\ndemocratic values of enshrined in the Constitution. Appointment of judges of the Supreme Court and appointment or\ntransfer of judges of the High Courts can be influenced to greater extent by\nthe Law Minister and two nominated members, thereby affecting the independence\nof judiciary which happens to be the basic structure of Constitution of India. <strong><\/strong><\/li><\/ul>\n\n\n\n<ul><li>Chief Justices of the High Courts are not a member of the\nCommission and have no Constitutional role in appointment or transfer of judges\nof the High Courts.<strong><\/strong><\/li><\/ul>\n\n\n\n<ul><li>The transfer of Judges from one High Court to another High Court\nis made by the<br>\nPresident after consultation with the Chief Justice of India under clause (1)\nof article 222 of the Constitution.<strong><\/strong><\/li><\/ul>\n\n\n\n<ul><li><strong>\u00a0<\/strong>The system\nof transfer of Chief Justices and Judges of High Courts from one High Court, to\nanother, as existing prior to the Constitution (Ninety-ninth Amendment) Act,\n2014 (called the collegium system), is declared to be operative; and to\nconsider introduction of appropriate measures, if any, for an improved working\nof the collegium system.<strong><\/strong><\/li><\/ul>\n\n\n\n<h4 class=\"wp-block-heading\"><span class=\"ez-toc-section\" id=\"CONCLUSION\"><\/span><strong>CONCLUSION<\/strong><span class=\"ez-toc-section-end\"><\/span><\/h4>\n\n\n\n<p>After the Supreme Court\u2019s judgments on\nappointments and transfer of judges in 1982, 1983, 1998 and 2015, the\ngovernment became almost powerless in this regard. The power now rests with the\ncollegium of judges. The apathy of almost every government towards these judges\nis understandable. But after fighting for its supremacy, has the collegium\nwarped under the government pressure? Or is this just a huge coincidence. The\nsituation is unclear. But one thing is certain, the absence of a law governing\nthe transparency in the system is the root cause of the whole problem. <\/p>\n\n\n\n<p>It should be understood that the collegium system\nhas its own limitations and disadvantages. First and foremost, the collegium\nsystem is nowhere mentioned in the constitution. It was evolved by the\njudiciary\u2019s own initiatives. It is thus looked upon as a highly undemocratic\ninstitution for a country like India. Secondly, this system is considered a failure\nwhen it comes to filling up of the vacancies of judges. Although it is not\ncorrect to entirely blame the collegium for its failure to fill the vacancies,\nbecause the element of malice on the part of the executive can also be traced.\nThirdly, it is tainted with nepotism. In the year 2009, The Law Commission of\nIndia made a statement that nepotism and personal patronage is prevalent in the\nfunctioning of the Collegium System. Even the judges who passed the judgements\nin favor of collegium, rued their decision. In 2009, Fali Nariman, who was one of those who won the Second\nJudges case, said that he regretted winning the case since the collegium hadn\u2019t\nlived up to expectations. Also, the former CJI JS Verma, who was the author of\nthe main judgment also regretted saying that what he had envisaged was not\nprimacy of the judiciary in appointments\/transfers, but a more effective\ngovernment consultation with the CJI instead of just a token one.<\/p>\n\n\n\n<p>What is to be understood is that the collegium is\nnot a permanent system that can work indefinitely. It has to be replaced by a\nproper governing body. It is the duty of the legislature to enact a law in this\nregard and the failure of which has worsened the situation. Again, the law has\nto be consistent with the spirit of the constitution, else it would be\nnullified as in case of NJAC. Till such a law is formed, the fate of many more\njudges is at stake. <br><\/p>\n\n\n\n<hr class=\"wp-block-separator\"\/>\n\n\n\n<p><a href=\"#_ftnref1\">[1]<\/a> Draft Constitution of\nIndia, 1948 <\/p>\n\n\n\n<p><a href=\"#_ftnref2\">[2]<\/a> Volume 4, Framing of\nIndia\u2019s Constitution 750 (B. Shiv Rao ed., 2015)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 <\/p>\n\n\n\n<p><a href=\"#_ftnref3\">[3]<\/a> Volume 4, Framing of\nIndia\u2019s Constitution 760 ( B. Shiv Rao ed.,2015)<\/p>\n\n\n\n<p><a href=\"#_ftnref4\">[4]<\/a> Constituent Assembly Debates (Proceedings), <strong>Vol. XI, Wednesday <\/strong>\u00a0Nov.16, 1949<\/p>\n\n\n\n<p><a href=\"#_ftnref5\">[5]<\/a>\u00a0 Ibid<\/p>\n\n\n\n<p><a href=\"#_ftnref6\">[6]<\/a> AIR 1977 SC 2328<\/p>\n\n\n\n<p><a href=\"#_ftnref7\">[7]<\/a> AIR 1982 SC 149<\/p>\n\n\n\n<p><a href=\"#_ftnref8\">[8]<\/a> AIR 1994 SC 268<\/p>\n\n\n\n<p><a href=\"#_ftnref9\">[9]<\/a> 1995\nSupp (1) SCC 682<\/p>\n\n\n\n<p><a href=\"#_ftnref10\">[10]<\/a> 1994\nAIR 1207<\/p>\n\n\n\n<p><a href=\"#_ftnref11\">[11]<\/a> AIR 1999 SC 1<\/p>\n\n\n\n<p><a href=\"#_ftnref12\">[12]<\/a> Supreme Court Advocates-on-Record Assn. v. Union of\nIndia,\u00a0<a href=\"http:\/\/www.scconline.com\/LoginForNewsLink\/2016_5_SCC_1\">(2016) 5 SCC 1<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"<p>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 [&hellip;]<\/p>\n","protected":false},"author":167,"featured_media":332,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[34],"tags":[],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v21.8.1 - https:\/\/yoast.com\/wordpress\/plugins\/seo\/ -->\n<title>Transfer of Judges: The Opacity - LexForti<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/lexforti.com\/legal-news\/transfer-of-judges-the-opacity\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Transfer of Judges: The Opacity - LexForti\" \/>\n<meta property=\"og:description\" content=\"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. 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