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 Chief Justice of India. Crucially, the Court observed that transfers cannot be used as a threat or punishment to judges.

According to the view expressed by Justice Tulzaparkar in S P Gupta following could be instances where transfer is justified for better administration of justice :

1. Transfer of a judge for remedying the unsatisfactory working conditions in a HC for reasons beyond his control and for which he is not responsible.
2. If a particular judge by reason of his nature and temperament is unable to get along with the CJ or his colleagues.

Justice Pathak observed in the SP Gupta that public interest is the touchstone on which every transfer must be tested and that this test implicitly circumscribes the exercise of power of transfer under Article 222.

With regard to the transfer of the judges and the condition and procedure thereof, further clarifications were issued in Supreme Court Advocates on Record Association v Union of India (Second Judges Case) and In Re Special Reference no 1 of 1998 (Third Judges Case). In SCAORA v Union of India, a nine-Judge bench of the Supreme Court delivered its verdict and held that "consultation" really means "concurrence." It was this judgment that gave birth to the system of "Collegium" and noted that, as against the CJI's individual opinion, it was the institutional opinion formed in consultation with the two senior most Judges of the Supreme Court which would require consideration. With regard to the issue of transfer of judges, it held that in the matter of transfer of a judge from one High Court to another, the opinion of the Chief Justice of India not only has primacy but is determinative.

The "Third Judges' Case" in 1998, enlarged the Collegium to a five-member body consisting of the CJI and the four senior most Judges of the Supreme Court. The Court laid down that the Chief Justice of India shall form his opinion in consultation with the Chief Justice of that High Court as well as of the High Court where a judge is to be transferred and also of one or more judges of the Supreme Court who are in a position to provide material to assist in the decision making process. Further, the views of the judges must be obtained in writing as well as the response of the judge to be transferred should finally be placed before a collegium consisting of the Chief Justice of India and four senior-most judges of the Supreme Court.

The majority judgment in the Second Judges Case also laid down a requirement that "the views on the proposed transfer of a Judge or a Chief Justice of a High Court should be expressed in writing and should be considered by the Chief Justice of India and the four seniormost Judges of the Supreme Court. The personal factors relating to the concerned Judge, including the Chief Justice, and his response to the proposal, including his preference of places, should invariably be taken into account by the Chief Justice of India and the first four puisne Judges of the Supreme Court before arriving at conclusion on the proposal."

The position that has emerged out of these cases is that the initiation of the proposal for the transfer of a judge should be made by the CJI whose opinion in this regard is determinative. The proposal is then considered by the Supreme Court Collegium consisting of the CJI and 4 senior-most judges.

The question that arises amidst all this is whether the consent of the judge concerned is at all mandatory.

Are transfers a 'consensual' process?

The majority opinion in Sankalchand held that consent was not necessary as there was no such requirement in the text of the Constitution. Justice Y.V Chandrachud wrote in his opinion:

"if the power of the President, who has to act on the advice of the Council of Ministers, to transfer a High Court Judge under Article 222(1) is strictly limited to cases in which the transfer becomes necessary in order to subserve public interest, in other words, if it be true that the President has no power to transfer a High Court Judge for reasons not bearing on public interest but arising; out of whim, caprice or fancy of the executive or its desire to bend a Judge to its own way of thinking, there is no possibility of any interference with the independence of the judiciary if a Judge is transferred without his consent."

However, the majority view was strongly questioned by minority opinions delivered by Justice P N Bhagwati and Justice Untwalia, who held that it was necessary to read transfer as 'consensual transfer' to protect judicial independence.

Justice Bhagwati, who was of the view that consent of the judge concerned should be mandatory in the interest of judicial independence, said:

"If Article 222(1) is interpreted to mean non-consensual transfer too this power of the executive would become a dangerous power, because the executive would then have an unbridled charter to inflict injury on a High Court judge by transferring him from the High Court to which he originally agreed to be appointed to another High Court if he decides cases against the government or delivers judgments which do not meet with the approval of the executive. That would gravely undermine the independence of the judiciary"

As per Justice Untwalia :

"Transfer without the consent of the judge concerned will bring devastating results and cause damage to the tower of judiciary and erosion of its independence."

However, despite these emphatic dissents, the majority position was reaffirmed in S.P.Gupta which too held that there is no requirement of prior consent of the Judge before his transfer under Art.222 of the Constitution. The position of law, as it stands today, is that the consent of the judges concerned is not required in the matter of transfer of high court judges. In 2017, the Ministry of Law and Justice had reiterated that the consent of the judges was not required before transferring him.

Are transfer orders justiciable?

The question of the justiciability of such transfer order came up for the consideration of the Court in the Second Judges Case which noted that:

"The primacy of the judiciary in the matter of appointments and its determinative nature in transfers introduces the judicial element in the process, and is itself a sufficient justification for the absence of the need for further judiciary review of those decision, which is ordinarily needed as a check against possible executive excess or arbitrariness."

Further, the case held:

"Plurality of Judges in the formation of the opinion of the Chief Justice of India, as indicated, is another inbuilt check against the likelihood of arbitrariness or bias, even subconsciously, of any individual. The judicial element being predominant in the case of appointments, and decisive in transfers, as indicated, the need for further judicial review, as in other executive actions, is eliminated. The reduction of the area of discretion to the minimum, the element of plurality of Judges in formation of the opinion of the Chief Justice of India, effective consultation in writing, and prevailing norms to regulate the area of discretion are sufficient checks against arbitrariness."

The question of justiciability again came up in K.Ashok Reddy v Government of India, [ AIR 1994 SC 1207], where the court held that a transfer could be subject to judicial review on the petition of the transferred judge on the ground of lack of consultation and non-observance of the decision-making process.

Except on the ground of a transfer being made without the recommendation of the Chief Justice of India and non-observation of the decision-making process, these matters are not justiciable on any other ground. Judicial review on the grounds of bias or arbitrariness has been expressly excluded as a ground for review by the element of plurality in the process of decision making as held in the Second Judges' case.

If the procedure is so elaborate why is it criticised?

Despite elaborate discussion on the nature and scope of the power to transfer a High Court judge, the power has not been without its criticism. The exercise of the power by the Collegium has often remained shrouded in mystery as the reasons for the transfer of judges are withheld from public view, lending credence to the view that transfers are punitive in nature. Withholding of reasoning also, naturally, gives rise to speculations and casts a shadow on the judge concerned as well as the integrity of the Collegium's decision.

Critics have questioned what makes Supreme Court Collegium's recommendations so special so as to place it beyond the reach of judicial principles regarding recording of reasons. Justice Madan Lokur in an article written in 2019 questioned the secrecy of the Collegium recommendation and asked: "Why the secrecy? Transparency does not end with putting up resolutions of the collegium on the website, or not putting them up or taking them down — it begins from here." Similarly, V.Venkatesan has argued that the element of executive influence over decision-making can be checked only with full transparency, and not merely by plurality in the process of decision-making. Recently, Madras HC lawyers have written to the Supreme Court Collegium noting that "Members of the Bar and the public have a right to know the reasons for this transfer. Until that is done, the only conclusion that can be drawn is that a judge is being rebuked for discharging his duties without fear or favour."

Furthermore, the frequency with which judges are transferred, sometimes with only months remaining before their retirement, has been another ground on which transfers are questioned. As explained in this piece, the power to transfer a judge from one High Court to another was never intended to be used with such frequency. That its use was intended to be reserved for the most exceptional cases is probably why there is little discussion on this question by the Constituent Assembly. In fact, the power to transfer judges en-masse was never wielded before the Emergency where the government passed transfer orders for 14 judges at a time- which ultimately became an occasion for the Supreme Court to judicially interpret the contours of Art.222 in the Sankalchand.

"Sunlight is the Best Disinfectant" the Supreme Court had observed while allowing live-streaming of proceedings. Given the criticism that the power and its exercise have been subject to over the years, is there not an occasion for the Supreme Court to reconsider the view taken by Justice Bhagwati in Sankalchand? Is it time for a Fifth Judges Case to reinterpret the provision to introduce an element of transparency and accountability in the Collegium's decisions?