Context: The transfer of Justice Yashwant Varma to the Allahabad High Court from the Delhi High Court has raised concerns and stirred debates about the role of judiciary in transfers.
Relevance of the Topic: Prelims: Transfer Process of HC Judges.
Constitutional Provisions for Judicial Transfers
- Article 222(1) of the Constitution empowers the President, in consultation with the Chief Justice of India (CJI), to transfer a judge from one High Court to another.
- The transfer of High Court judges in India has evolved through a series of landmark Supreme Court judgments known as the "Judges Cases".
1. First Judges Case (S.P. Gupta versus President of India, 1981):
- The Supreme Court held that consultation with the CJI did not necessitate concurrence, it only means exchange of views.
- The opinion of the Chief Justice of India (CJI) was not binding on the President regarding judicial appointments and transfers.
- It affirmed the executive’s primacy in judicial appointments and transfers.
2. Second Judges Case (Supreme Court Advocates-on-Record Association v. Union of India 1993):
- The Court overruled the First Judges Case and institutionalised the concept of "Collegium System".
- The SC held that consultation means concurrence, and in the event of a disagreement between the President and the CJI, the latter’s opinion would prevail.
- The CJI must consult the Chief Justice of the concerned High Court, relevant Supreme Court judges, and at least one senior High Court judge or any other significant individual (including senior members of the Bar) where appropriate.
- The court emphasised that judicial transfers must serve public interest and improve the administration of justice.
3. Third Judges Case (1998):
- It further refined the collegium system, mandating that transfer recommendations be made by the CJI in consultation with the four senior most judges.
- It requires inputs from Supreme Court judges who had previously served in the High Court from which the judge was being transferred.
- Following the collegium’s recommendation, the Law Minister reviews it and advises the Prime Minister, who then forwards the recommendation to the President. Once approved, the transfer is formalised through a gazette notification, and the judge assumes office in the new High Court.
Criticism of the High Court Judges' Transfer Process:
A recent report by the Geneva-based International Commission of Jurists (ICJ) raises serious concerns about judicial independence in India, citing growing executive interference, opacity in appointments, and weak accountability mechanisms
- Transfers are frequently justified on vague grounds such as "public interest" or "better administration of justice," making it difficult to distinguish legitimate transfers from punitive actions. This lack of clarity raises suspicions of executive interference.
- To mitigate these concerns, the ICJ recommended that Parliament establish a “Judicial Council” to oversee appointments and transfers based on transparent, objective, and predetermined criteria.
National Judicial Appointments Commission Act:
- National Judicial Appointments Commission Act was an attempt by the union government to address concerns over the collegium system’s opacity.
- It recommended establishing an independent body to replace the collegium system for appointing judges to the Supreme Court and High Courts.
- The NJAC was to be chaired by the CJI and include the two senior-most Supreme Court judges, the Union Law Minister, and two eminent civil society members.
- However, it was struck down by the Supreme court as unconstitutional. The inclusion of the Law Minister and two eminent persons was seen as giving the executive a say in judicial appointments, which compromised the independence of the judiciary.