The Constitution of India is the fountainhead from which all our laws derive their authority and force. This is the next Article in the series on constitutional provisions in order to aid our readers in understanding them.
Transfer of a Judge from one High Court to another.—(1) The President may, on the recommendation of the National Judicial Appointments Commission referred to in article 124A], transfer a Judge from one High Court to any other High Court.
(2) When a Judge has been or is so transferred, he shall, during the period he serves, after the commencement of the Constitution (Fifteenth Amendment) Act, 1963, as a Judge of the other High Court, be entitled to receive in addition to his salary such compensatory allowance as may be determined by Parliament by law and, until so determined, such compensatory allowance as the President may by order fix.
The power under article 222 is to be exercised only exceptionally and in public interest, and where it becomes expedient and necessary in the public interest. Any transfer on the whims and caprices of the executive or not in public interest can be challenged in court as being ultra vires or without jurisdiction. Also, no transfer can be made without consulting the Chief Justice of India. Consultation does not mean concurrence, but there must be full deliberation and all the facts and documents must be considered. But article 222 does not require consent of a judge to transfer from one to another High Court.
Transfer must be (i) only in public (national) interest and (ii) after effective consultation with the Chief Justice of India. Consultation or deliberation is not complete until the parties make their points of view known to the other or others and discuss and examine the relative point of their views.
The power vested under article 222 can only be exercised in “public interest”. The concept of “public interest” when read in article 222 makes it obligatory that the views of the Chief Justice of India are accepted by the executive. Proposal for transfer should be initiated by the Chief Justice of India alone. A transfer made (i) in public interest, (ii) on the recommendations of the Chief Justice of India cannot be treated as punitive or an erosion in the independence of Judiciary and is not justiciable.
The power of transfer can be exercised only in ‘public interest’ i.e., for promoting better administration of justice throughout the country. There is a clear provision for transfer in article 222 and transfer in accordance with the recommendation of the Chief Justice of India cannot be treated as punitive or an erosion in the independence of judiciary. There is nothing in article 222 to require the consent of a Judge/Chief Justice for his first or even a subsequent transfer.
Care must be taken to ensure that no Chief Justice is transferred without simultaneous appointment of his successor-in-office, and ordinarily the acting arrangement should not exceed one month. It may be desirable to transfer in advance the senior most Judge due for appointment as Chief Justice to the High Court where he is likely to be appointed Chief Justice, to enable him to take over as Chief Justice as soon as the vacancy arises and, in the meantime, acquaint himself with the new High Court. This would ensure a smooth transition without any gap in filling the office of Chief Justice.
In the formation of opinion, the Chief Justice of India, in case of transfer of a Judge other than the Chief Justice, is expected to take into account the views of the Chief Justice of the High Court from which the Judge is to be transferred, any Judge of the Supreme Court whose opinion may be of significance in that case, as well as the views of at least one other senior Chief Justice of a High Court, or any other person whose views are considered relevant by the Chief Justice of India.
Exercise of power of transfer under article 222 of the Constitution is to subserve a public purpose and to promote ‘public interest’ for better administration of justice. The guideline of public interest, i.e., ‘for promoting better administration of justice throughout the country’ is sufficient guideline for proper exercise of the power and to ensure exclusion of the possibility of any arbitrariness in the exercise of power of transfer under article 222 in accordance with the recommendation of the Chief Justice of India. The provision requiring exercise of this power by the President only after consultation with the Chief Justice of India, and the absence of the requirement of consultation with any other functionary, is clearly indicative of the determinative nature, not mere primacy, of the Chief Justice of India’s opinion in this matter. This does not exclude judicial review but merely limits the area of justiciability to the constitutional requirement of recommendation of the Chief Justice of India for exercise of power under article 222 by the President of India.
Judicial review is necessary to check arbitrariness. But as to locus standi, only the judge who is transferred can challenge it.
Before recommending the transfer of a Judge of one High Court to another as a judge, the Chief Justice of India must consult a plurality of Judges. He must consider the views of: (i) the Chief Justice of the High Court from which the Judge is to be transferred; (ii) any Judge of the Supreme Court whose opinion may have significance in the case; (iii) the Chief Justice of the High Court to which the transfer is to be affected. All these views along with the response of the judge to be transferred are to be expressed in writing and should be considered by a collegium consisting of the Chief Justice and the four senior-most judges of the Supreme Court before reaching a conclusion on the proposal and conveying it to the Government of India along with the proposal for transfer. Unless the decision to transfer has been taken in the manner aforesaid, it is not decisive and does not bind the Government of India.
Before recommending the transfer of a puisne Judge of one High Court to another High Court, also as a puisne Judge, the Chief Justice of India must consult a plurality of Judges and he must take into account the views of the Chief Justice of the High Court from which the Judge is to be transferred, any Judge of the Supreme Court whose opinion may have significance in the case and at least one other senior Chief Justice of a High Court or any other person whose views he considers relevant. The views of the Chief Justice of the High Court from which the proposed transfer is to be affected as also the Chief Justice of the High Court to which the transfer is to be affected should be expressed in writing and should be considered by the Chief Justice of India and four senior most puisne Judges of the Supreme Court. These views and those of each of the four senior-most puisne Judges should be conveyed to the Government of India along with the proposal of transfer. Unless the decision to transfer has been taken in the manner aforesaid it is not decisive and does not bind the Government of India. The opinion of the Chief Justice of the High Court or the puisne Judge proposed to be transferred should be placed before the collegium of Chief Justice of India and his first four puisne Judges to be considered by them before reaching a final and conclusive decision on the proposal. This principle applies equally to the transfer of a Chief Justice of one High Court to another except that, only the views of one or more knowledgeable Supreme Court Judges need to be considered.
