Need To Review The Present System Of Transfer Of High Court Judges

The issue of transfer of High courts judges has been a contentious issue. Article 222 of the Constitution states that the President of India may after consultation with the Chief Justice of India transfer a Judge from one High Court to any other High Court. Prior to 1975, there were twenty five judges who were transferred from one High Court to the another High Court and in all these cases the consent of the transferred Judge was taken. But, in 1976, the then President of India, on advice of then Council of Ministers issued a notification transferring 16 Judges. These large-scale transfers were due to the Judges passing orders against the Government of that day during the Emergency period. One such Judge, Justice Sankalchand Himatlal Sheth challenged his transfer from the High Court of Gujarat to the High Court of Andhra Pradesh before the High Court of Gujarat under Article 226 of the Constitution of India. A special bench of three judges heard the Writ petition and held that there was no effective consultation with the Chief Justice of India and also the transfer order was passed without the Judge's consent.

Challenging the judgment of the High Court of Gujarat, the Union of India preferred appeal before the Supreme Court. The Supreme Court constituted a bench of five judges (Union of India v. Sankalchand Himatlal Sheth, (1977) 4 SCC 193 ["Sankalchand case"]) Two issues were before the Supreme Court, (i) Whether the consent of the Judge who is to be transferred is a must, and (ii) Whether effective consultation with the Chief Justice of India is a condition precedent before the President issues the order of transfer.

On the second issue, all the five judges were unanimous in holding that there should be effective consultation with the Chief Justice of India before the President could issue the order for transfer.

So far as the first issue is concerned, the Supreme Court with a 3:2 majority has held that the consent of the judge who is being transferred is not necessary. The majority view was taken by Y.V. Chandrachud J., V.R. Krishna Iyer J. and S. Murtaza Fazal Ali J., while the minority view was taken by P.N. Bhagwati J. and N.L. Untwalia J. The present article throws light on this first issue and the need to review it.

Before going further, it is pertinent to know that even before the Supreme Court could pass a judgment in the facts of that case, the issue was resolved between the parties owing to the change of the Government at the centre. The order of transfer of Justice Sankalchand Himatlal Sheth was recalled.

Majority view

Y.V. Chandrachud, J. observed that - (i) the power to transfer a High Court Judge is in "public interest" and such public interest cannot be achieved if a Judge cannot be transferred without his consent because his personal interest may lie in continuing in a Court where his private interest will be served,^[1] (ii) As Article Article 222(1) postulates consultation with the Chief Justice of India which means there should be an effective consultation and the Chief Justice of India by training and experience is in the best position to consider the situation fairly, competently and objectively, therefore an independent person is there to protect the interests of the Judge of High Court.^[2] It was further pointed out that the transfer is not to punish the Judge for any judgment which he may pass as the power to punish him is described under Article 218 read with Articles 124(4) and (5) whereunder a Judge of the High Court can be removed from his office by an order of the President passed after an address by each House of Parliament.^[3]

Krishna Iyer, J. who wrote a separate concurring opinion for himself and S. Murtaza Fazal Ali, J. has held that (i) Transfer in context of service jurisprudence is not limited to consensual transfer,^[4] (ii) The wording of Article 222(1) does not provides for consensual transfer,^[5] (iii) It would be impossible to transfer a Judge if he does not give his consent even though he may have great personal interests or close associations in his own State or by his conduct he brings about a stalemate in the judicial administration where the Chief Justice of the High Court would become more or less powerless,^[6] (iv) Article 222 contains safeguard to ensure independence of judiciary, i.e., the President of India acts on consultation of the Chief Justice of India who is the highest judicial authority of the country.^[7] On the point that if the Judge misbehaves he can be impeached, it was repelled by reasoning that not every misbehaviour or misconduct may be sufficient to impeach a Judge and it would be difficult to prove such misconduct or misbehaviour in the manner provided by the Constitution in a large variety of cases.^[8]

Minority View

P. N. Bhagwati, J. who took a minority view observed that: (i) the appointment is of a person as a Judge of a particular High Court and not as Judge simpliciter. There is no All-India cadre of High Court Judges,^[9] (ii) a Judge of the High Court is not a Government servant, but he is the holder of a constitutional office,^[10] (iii) As transfer could be exercised by the Executive, it would be highly dangerous because the executive would have an unbridled charter to inflict injury on a High Court Judge by transferring him from the High Court if he decides cases against the Government. Hence, his transfer without his consent would undermine the independence of judiciary,^[11] (iv) Though the consultation with the Chief Justice of India is needed, but for all practical purposes the final decision would be of the executive as it happened in the case of 16 Judges and it would not be safe to entrust to the executive or one single individual, howsoever high and lofty, the power to inflict injury on a High Court Judge,^[12] (iv) Though the words "without his consent" are not to be found in Article 222(1), but the word "transfer" is used in neutral sense and if high and noble purpose of the Constitution to secure the independence of the judiciary is to be achieved, the word "transfer" must be read in the limited sense of consensual transfer,^[13] (iv) As even after transfer, the Judge has to take oath or affirmation which can happen only when he consents, hence from a consideration of the conspectus of various constitutional provisions his transfer could be said to with his consent only.^[14] On the point that if a Judge is given a consenting power, it would be impossible to transfer despite he facing allegations of doubtful integrity, improper conduct or undue involvement with lawyers and members of the public, it was rejected by stating that though transfer of undesirable judge may secure public interest but in comparison with the larger harm, i.e., harm to independence of judiciary as discussed above, the same cannot stand.^[15]

N.L. Untwalia, J. who also took a minority view observed that (i) as the Judge who gets transferred to another High court has to take fresh oath or affirmation which can happen with his consent, therefore his consent is needed before recommending his transfer,^[16] (ii) The words used in Article 222 have been made for the purpose of keeping it so on the Statute Book and not for purpose of utilising it in the manner it was utilised in the year 1976,^[17] (iii) Not allowing the judge to consent to his transfer would impinge the independence of the judiciary.^[18]

It is apt to mention that among the five judges, only Y. V. Chandrachud, J. and N.L. Untwalia, J. made observations on the point of violation of principles of natural justice, i.e., to hear the judge whose is to be transferred. Y.V. Chandrachud, J. observed that Article 222 contains in-built protections like the transfer is in public interest and Chief Justice of India is there to protect his interests,^[19] whereas, N.L. Untwalia, J. observed that invoking principle of natural justice will be stretching the principle to a breaking point. It will lead to many unpractical, anomalous and absurd results and will have inevitable repercussions in the order of transfers made in other branches of service either under the Union or the States.^[20]

First Judges Case

The majority view in the Sankalchand case that there is no need to obtain the consent of the judge to be transferred was upheld by the seven-judge bench in S.P.Gupta v. Union of India, (1981 Supp SCC 87) [famously called as "first judges case"]

Second Judges Case

In Supreme Court Advocates-on-recordAssociation v.Union of India, (1993) 4 SCC 441 [famously called as "second judges case"], the nine-judge bench has upheld the view taken by the majority in the Sankalchand case, and held that the there is no need of obtaining the consent of the judge who is supposed to be transferred before initiating his transfer.^[21] It was also held that the initiation of the proposal for the transfer of a Judge of the High Court should be by the Chief Justice of India alone.^[22] It was further observed that the transfer can be exercised only in "public interest" and any transfer in consultation with the Chief Justice of India cannot be treated as punitive or an erosion in the independence of judiciary.^[23] Infact, it was held that the judicial review of the transfer order can be made only if the same is without the recommendation of the Chief Justice of India.^[24]

Third Judges Case

The nine-judge bench was again constituted in SpecialReference No. 1 of 1998, Re, (1998) 7 SCC 739 [famously called as "third judges case"] wherein, so far as transfer of judges under Article 222 is concerned, it was held that (i) The Chief Justice of India should obtain the views of the Chief Justice of the High Court from which transfer is to happen and of the Chief Justice where the transfer is to be effected,^[25] (ii) The transfer of High Court Judge is judicially reviewable only to the extent that the recommendation was not made by the collegium or that views of the Chief Justices of High Court from where he is transferred or to which the transfer is to be effected is not obtained,^[26] (ii) the transfer of High Court Judge has to happen based on recommendation of the collegium consisting of the Chief Justice of India and Four senior most Judges of the Supreme Court.^[27]

Memorandum Of Procedure (MOP)

After the decision of the Supreme Court in the third judges case, there was a Memorandum of Procedure (MOP) entered into between the Judiciary and the Government containing a set of guidelines for making appointments and transfers to the Supreme Court and the High Courts. Insofar as the transfer is concerned, while retaining the directions given in the third judges case, it was further agreed that the response of the concerned Judge to the proposal including his preference of places should be taken into consideration by the collegium.

Author's View

The conspectus of above position of law in regard with the transfer of the Judge of High Court makes one thing clear, that is - the Judge whose transfer is to be effected has no say over his proposed transfer. Though the minority views expressed by P.N. Bhagwati, J. and N.L. Untwalia, J. in the Sankalchand case were at that time with intention to ensure independence of judiciary, i.e., to ensure that the Judges are not transferred at the whims and fancies of the Executive, now as it is the collegium consisting of the Chief Justice of India and the four senior-most judges of the Supreme Court which ensures the transfer of the High court judge, hence the most of the reasons given by the minority judges in the Sankalchand case cannot be used for present day changed scenario. That does not mean that the majority view expressed in the Sankalchand case and later adopted in subsequent cases is a good view for making the transfer of the Judge, because the nine-judge benches in the second and third judges cases have not given any reasons for it adopting the majority view of the Sankalchand case. Therefore, one option is to constitute a bench of eleven judges and review the view taken in the Sankalchand case more particularly in the light of one of the observations made by P.N. Bhagwati, J. and N.L. Untwalia, J. wherein they stated that every time a Judge is transferred, he has to take oath or affirmation which requires his consent, therefore consent is necessary before initiating the transfer.^[28]

The concept of Principles of Natural Justice was referred to some extent in the Sankalchand case, but was not adopted much. It has to be noted that the Principles of Natural Justice are so intrinsic and natural that they weave into the entire fabric of the Constitutional jurisprudence and for compliance with the natural justice principles one does not need an express provision in the Constitution to say that the Judge who is to be transferred should be heard. Further, the collegium does not provides the reasons for which it has recommended the Judge's transfer.

Even without following the natural justice principles in strict sense, atleast, it has to be borne in mind that the collegium does not enjoy the master relationship over the High Court judge as the collegium is neither conferred with the power to give salary to the High Court judge nor it has power to remove the High Court judge. A High Court judge is an independent person who is part of one of the wings of the State Government, i.e., the State Judiciary. But for the limited factors, the Judge cannot challenge the transfer decision of the collegium and has to either toe the line of the collegium's recommendation or resign from his post. The collegium has been brought as an alternative through judicial interpretation to ensure that there is no executive interference over the appointment or transfer of a Judge to ensure independence and impartiality of the judiciary, and not to act as the master.

One of the reasoning given by the majority judges in the Sankalchand case that a Judge whose acts make the Chief Justice of the High Court more or less powerless has to be transferred, is true. Under the present transfer system, the converse it also equally true because if a Chief Justice of the High Court has some issues with the Judge of that High Court over appointment of new Judges, roster allocation, the District judiciary administration or any other issue, then the Chief Justice can ensure the transfer of that Judge by putting a word with the collegium which anyways has to seek the views of the Chief Justice only, and not of the Judge whose transfer is proposed. This may compel the Judge of the High Court, who is an independent authority in himself, to act as per the wishes of the Chief Justice of the High Court. And this will act like a punishment only to that Judge.

I am not for the moment saying that there should be no transfer of the Judge at all because a Judge, who is after all a human being, if conducts himself improperly or gets himself involved with lawyers and members of the public for personal interests or gets involved with the State Government or any local political party, he may bring a hiatus to the efficient and impartial functioning of the Judiciary. But before passing recommendation of transfer, the Judge who is to be transferred should be asked his views as many factors like his health, (say it will be difficult for a Judge suffering from illness to go to the State having extreme cold conditions), family, etc., have to be taken care of.

Also, it has to be considered that though the Central Laws are same across the country, each State has unique local law which a person practising there would only know. For instance, the Revenue system and the Revenue laws in the State of Telangana are so unique that a Judge from any other State would take a very long time to understand it. And in this scenario, if a local Judge having full grip over the local laws is transferred to some other State, it will lead to injustice to the local people in a way that they will be deprived of a Judge who understands their grievances fully and has experience over it owing to his practice as an Advocate for a long time in that State.

The need for a local Judge is also for the fact that under Article 226 of the Constitution of India the High Court enjoys more powers than the Supreme Court enjoys under Article 32 of the Constitution of India. And for any legal right violation, a Writ Petition lands up in the High Court, which most of the time has to do with the local laws, rules and Administration.

Therefore, to conclude, it is high time that some reforms are brought in regard with the transfer of the High court judges, like (i) the collegium can call for the Judge's views over his proposed transfer by giving its reasons for the proposed transfer, then (ii) based on the views or difficulties expressed by the Judge, it can take a decision over whether to recommend his transfer or not, (iii) give its reasons behind the decision of recommending him for transfer or dropping the transfer proposal so that justice should not only be done but it should seems to have been done, let it be a common man or a Judge.

The author is an Advocate practicing at the High Court of Telangana. The views expressed are personal.