Non-transparency in Judicial Transfers – UPSC GS2

  • Supreme Court collegium recommended the transfer of the Chief Justice of the Madras High Court to the Meghalaya High Court and transfer of the senior-most judge of the Allahabad High Court to the Madras High Court. These transfers raise certain questions.
What does the constitution say about the transfer of high court judges?
  • Article 222 (after the formulation of collegium) states that the supreme court will provide recommendations for the transfer of HC judges.
  • If the proposal came from the Supreme Court collegium, then the Central government can ask for relevant material before tendering any advice to the President of India.
  • If the Central government is not satisfied, then it can ask the Supreme Court to reconsider its decision.
How did SC cases interpret Article 222 in different cases?
  • In the Sankalchand H Sheth case:  Justice Bhagwati said that the transfer of a judge from one court to another inflicts many injuries on the individual. So, the consent of the judge proposed to be transferred should be required. He also held that if the power of transfer is vested solely with the executive, it undermines judicial independence and impacts the basic features of the Constitution.
  • In the K Ashok Reddy case: Court held that primacy of the judiciary in the matter of appointments and in transfers introduces the judicial element in the process. As the process of transfer happens with the concurrence of the senior members of the judiciary, there is no need of further judicial review to check for executive’s arbitrariness or excess.
What are the questions raised by these transfers?
  • Non-transparent: The court took one and a half months to make the appointments public, which raises the questions of transparency.
  • A matter of punishment: Meghalaya HC has only 4 judges while Madras High court has sanctioned strength of 75. So, the transfer of CJI of Madras HC to Meghalaya HC seems like a punishment.
  • A matter of reward: Transfer of the judge of the Allahabad High Court to the Madras High Court, makes him a senior-most judge in that court. It may also be possible that he will become the next CJI of Madras HC in the coming future.
  • Not consultation with senior judges: While transferring of the judge, senior-most judges are also consulted. It is seen that in the case of transfer of Allahabad HC judge, only the junior most judge of SC is consulted not the senior one.
What should be the way forward?
  • Any decisions, factors and reasons related to transfer/appointment should be put in the public domain to instil trust in minds of the public.
  • The central government should also step in and clear all the doubts raises about the appointment mechanism and make it a transparent process.

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