Transfer of Judges

1).Synopsis
#).Judiciary in our country is the main pillar of democracy which helps in the
smooth functioning of democracy.
#).Judges are the main aspects of the judiciary.
#).It is mandatory that the judges have to be efficient in order for the judiciary
to be successful.
#).There are many famous judges in our country who have brought out a lot of
changes through their judgments which led to the overall development of this
country.
#).Judges are respected in our country and people have lots of faith and hopes on
them, thus it is necessary to make sure that the tranfer of judges is proper and
not biased.
#).Various provisions of our Indian Constitution deals with the transfer of Judges
which has to be followed in every aspect of Transfer.

2).Constitutional provisions on transfers of high court judges:

#).Article 222 of the Constitution makes provision for the transfer of a Judge
(including Chief Justice) from one High Court to any other High Court.
#).The initiation of the proposal for the transfer of a Judge should be made by the
Chief Justice of India(CJI).
#).The opinion of the CJI �is determinative�.
#).Consent of a Judge for his first or subsequent transfer would not be required.
#).In the formation of his opinion for the transfer of a Judge, other than the
Chief Justice, the CJI is expected to take into account the views of the Chief
Justice of the High Court from which the Judge is to be transferred and Chief
Justice of the High Court to which the transfer is to be effected.
#).The views of one or more Supreme Court Judges who are in a position to offer
his/their views are also taken into account.
#).In the case of transfer of a Chief Justice, only the views of one or more
knowledgeable Supreme Court Judges need to be taken into account.
#).The views on the proposed transfer of a Judge or a Chief Justice of the High
Court should be expressed in writing and should be considered by the CJI and the
four senior most Judges of the Supreme Court.
#).The proposal should be referred to the Government of India.
#).Then the Union Minister of Law, Justice and Company Affairs would submit a
recommendation to the Prime Minister who will then advise the President as to the
transfer of the Judge concerned.
#).After the President approves the transfer, the notification will be gazetted and
the judge remains transferred.

3).Timeline for changes in the appointment and trasfer procedures

After independence, India adopted the Constitution in 1950.
According to the Constitution, up to 1973, the President appointed the Chief
Justice of India and remaining judges of the Supreme Court in consultation with the
CJI and other judges as he deemed necessary.
3.1).Appointment of CJI 1950-1973
#).Until 1973, there existed a consensus between the Government of the day and the
Chief Justice of India.
#).A convention was formed where the senior-most judge of the Supreme Court was to
be appointed as the Chief Justice of India.
#).In 1973, A.N.Ray was appointed as the Chief Justice of India.
#).This violated the convention formed earlier since Justice A.N.Ray superseded
three other Supreme Court judges senior to him.
#).Again in 1977, another chief justice was appointed who superseded his seniors.
#).This resulted in a clash between the Executive and the Judiciary.
#).And there was a perception that the independence of the judiciary was under
threat.
#).This resulted in a series of following cases:
3.2).First judges case, 1982
#).The �First Judges Case� (1981) ruled that the �consultation� with the CJI in the
matter of appointments must be full and effective.
#).A petition was filed in 1982 in the Supreme Court of India.
#).This case is known as the S.P.Gupta Case or First Judges case.
#).The Supreme Court discussed 2 major points during the proceedings of this case
#).When asked to the Supreme Court of India whether the word �consultation� in the
constitutional article 124 mean �concurrence�; the Supreme court overruled this and
denied saying that Consultation does not mean concurrence.
#).The President was not bound to make a decision based on the consultation of the
Supreme Court.
#).Another important point in the discussion, in this case, was the part where the
Supreme Court decided that a High Court Judge can be transferred to any other high
court of a state even against his will.
#).However, it rejected the idea that the CJI�s opinion should have primacy.
3.3).Second judges case,1993
#).Another petition was filed in 1993 by the Supreme Court Advocates-on Record
Association (SCARA).
#).In this case, the Supreme court overruled its earlier verdict and changed the
meaning of consultation to concurrence.
#).Thus binding the President of India with the consultations of the Chief justice
of India.
#).This resulted in the birth of the Collegium System.
#).This system, holding that �consultation� really meant �concurrence�.
#).It added that it was not the CJI�s individual opinion,
#).but an institutional opinion formed in consultation with the two senior-most
judges in the Supreme Court.
3.4).Third Judges Case, 1998
#).In the year 1998, the presidential reference to the Supreme court was issued
questioning the meaning of the word consultation in the articles 124, 217 and 222
of the Constitution.
#).The chief justice won�t be the only one as a part of the consultation process.
#).Consultation would include a collegium of 4 senior-most judges of the Supreme
court.
#).Even if 2 of the judges are against the opinion, the CJI will not recommend it
to the government.
#).In the verdict, the Supreme Court laid down strict guidelines for the
appointment of Judges of Supreme Court and high courts which is currently known as
the Collegium System.
3.5).Collegium System
#).In this system of appointment of Judges, the collegium will recommend the names
of the candidates to the Central Government.
#).Also, the central government will send the names of the proposed candidates for
consultation.
#).The appointment process takes a long time since there isn�t a fixed time limit
for it.
#).If the Collegium resends the same name again then the government has to give its
assent to the names.
#).The Collegium System faced a lot of criticism not only from the government but
also from civil society due to its Lack of Transparency and Accountability.
#).This led to the 99th Constitutional Amendment Act, 2014 the National Judicial
Commission Act (NJAC) to replace the collegium system for the appointment of
judges.
3.6).National Judicial Appointment Commission Act, 2014
#).The 1993 judgment was the basis on which a five-judge Constitution Bench
declared the National Judicial Appointments Commission Act (NJAC) and the
Constitutional (Ninety-Nine Amendment) Act, 2014 unconstitutional in October 2015.
#).NJAC too would recommend names for the Appointment of Supreme Court Judge and
Appointment and Transfer of High Court Judge
#).Composition of NJAC
1.The Chief Justice of India
2.senior-most judges of the Supreme Court
3.The Law Minister of India
4.eminent members that are chosen by the Selection Committee
#).The aspirants should note that NJAC was established in order to achieve greater
transparency and accountability for the appointment of judges.
#).But it was struck down by the Supreme Court on the grounds that it was against
the �Independence of Judiciary�
#).i.e Principles of Basic Structure since it involved the Political Executive in
the appointment of Judges.

4).Common criticism made against the Collegium system:

#).The norm of the Supreme Court collegium not to make public, the reasons for
transfers and maintaining opaqueness are contributing to an erosion of the
judiciary�s credibility and its image of being independent in its functioning from
the executive.
#).This also invariably makes the High Court judges look subordinate to the Supreme
Court collegium.
#).Collegium, which is not a constitutional body has monopoly over transfer of
judges.
#).The small base from which the selections are made and the secrecy and
confidentiality ensured, on many occasions lead to wrong appointments based on past
favours instead of merit or seniority as well as nepotism.
#).The attempt made to replace it by a �National Judicial Appointments Commission�
was struck down by the court in 2015 on the grounds that it posed a threat to the
independence of the judiciary.
#).Dissenting judge, Justice J. Chelameswar, termed it �inherently illegal�.
#).In an effort to boost transparency, the Collegium�s resolutions are now posted
online, but the reasons are not given.
#).The consultative process that had been put into place to guard the judiciary
against arbitrary transfers has been criticised for itself becoming arbitrary.
#).The case of Justice Tahilramani fits into this framework where the public is
left with no information on why the transfer was made.

5).Problems involved in the present issue and Solutions

5.1).Content:
#).The collegium, headed by Chief Justice Ranjan Gogoi, recommended transfer of
Justice Tahilramani, from Madras High Court to the Meghalaya High Court.
#).She spent almost 17 years as a judge in the Bombay High Court and has been its
acting chief justice.
#).She was transferred to the Madras High Court in August 2018.
#).There has not been any controversy about her functioning and hence it is unclear
why her transfer to a smaller High Court was necessary.
#).The collegium resolution has merely stated that it is being done for better
administration of justice.
#).After the collegium resolution she had made a representation, requesting it to
reconsider the proposal for transfer.
#).However on September 3, 2019, collegium did not accede to her request and
reiterated its recommendation and uploaded the resolution on the SC website.
#).Justice Tahilramani has submitted her resignation after her request for
reconsideration of the transfer was rejected.
#).Legal luminaries have criticised Justice Tahilramani for resisting the transfer,
arguing that no High Court is lesser than another.
#).Many have pointed out that Tahilramani in 2017, had upheld the conviction of the
accused in the Bilkis Bano case linked to the 2002 Gujarat communal riots.
#).However, she was made a chief justice of a High Court much after this judgement,
so the attempt to link her transfer to the Gujarat case is weak.
#).While sections of the Bar have questioned the transfer as well as the lack of
transparency about the exact reason, the SC issued an official statement that the
Collegium indeed had cogent reasons which could be revealed if necessary.
5.2).Problems with present issue:
#).The lack of information in the transfer resolution has led to a barrage of
criticism against the collegium and its opaque process of appointments and
transfers.
#).While this is true given that all high courts have similar powers under the
Constitution, a transfer without delineating proper reasons has an inherent danger
to be seen as a punishment.
#).Tahilramani is the senior-most among the High Court judges currently holding
office.
#).The Madras High Court considered a prestigious court with a long history has a
sanctioned strength of 75 judges compared to just three in the Meghalaya High
Court.
#).Hence the immediate question that has arisen is when Justice Tahilramani had
just over a year of service left , was it necessary to �demote� her?
5.3).Solutions:
#).In the Union of India v SankalChand Sheth case (1977), the actual transfer of
the judge was withdrawn and Justice PN Bhagwati, had stated that to transfer
without consent was inimical to the independence of the judiciary.
#).Henceforth, Justice Bhagwati�s view of no transfer without consent needs to be
followed.
#).To make the system more transparent and declare the reasons for transfer of the
judges.
#).Merit and seniority should be given an upper hand while making transfers rather
than personal interests.

6).Landmark Judgments
6.1).S.P Gupta v Union of India
#).Several writ petitions were filed in the various High Courts regarding the
appointment of High Court Judges as well as the Supreme Court judges in the form of
public interest litigation.
#).These petitions were transferred to the Supreme Court using suo moto cognizance.

#).The main issue was to decide whose opinion in the collegium should be given
primary importance while appointing the judges.
#).The majority opinion was that �the opinions of Chief Justice of India and
opinions of the Chief Justice of High Court were merely consultative and that power
of appointment solely resides in the Central Government �.
#).The meaning of the word consultation was also discussed in the case.
#).The word consultation mentioned in Article 124 and Article 217 in relation to
all consultees and final decision in the matter was left to the Central executive.
#).The majority took an extremely literal and positivistic view of Article 217.
#).The central government even after this judgment followed the old practice and no
judge was appointed without the name being cleared by the Chief Justice of India.
6.2).Supreme Court Advocates on record association v. Union of India
#).This case was a landmark judgment which constituted a bench of nine judges.
#).This case is popularly known as the Second Judges case.
#).The main question that was decided was whether the independence of the judiciary
is the basic feature of the constitution.
#).The Supreme Court Advocates-on-Record Association and Senior Advocates filed
writ petitions before the Supreme Court which questioned the constitutionality of
the 99th Amendment and the NJAC Act.
#).The petitions accused that the NJAC violated the basic structure of the
Constitution by compromising the judiciary�s independence.
#).The majority verdict the Chief Justice has the power to appoint and transfer
Judges.
#).The Chief Justice of India needs to consult only two senior-most judges during
the time of appointment.
#).The first major issue which was in question was the meaning of the term
�consultation� which is present in Article 124.
#).The majority came to a conclusion that it means an �integrated, participatory
and consultative process�.
#).This leads to complete discharge of constitutional obligations on the part of
constitutional functionaries.
#).Various methods have been used by the Judges in the case to establish that
�consultation� means occurrence or primacy notably among which are� The Chief
Justice of India as a �PaterFamilias� would be competent enough and has the best
qualities to judge and differentiating the Indian constitution with other
constitutions, our constitution does not vest absolute discretion in the hands of
the executive.
#).Hence, the Chief Justice of India cannot be considered as an inferior position.
6.3).In re Special Reference 1 of 1998
#).This is another famous case which decided various regarding the appointment of
Judges.
#).The main issue that was to be decided was whether the expression �consultation
with the Chief Justice of India� which are mentioned in articles 217(1) and 222(1)
requires consultation with a many Judges when the opinion of the Chief Justice of
India is formed or does the single individual opinion of the Chief Justice of India
constitute a valid consultation that comes under the meaning of the term
�consultation� which is mentioned in the above said articles.
#).The case also decided various other issues like whether any recommendations made
by the Chief Justice of India without following the rules and the process of
consultation are binding upon the Government of India.
#).It was held in the case that the expression �consultation with the Chief justice
of India� in Articles 217(1) and 222(1) of the Constitution of India requires
consultation with a majority of Judges in the formation of the opinion of the Chief
Justice of India.
#).The individual and personal opinion of the Chief Justice of India do not
constitute a valid �consultation� which comes under the meaning of the term in the
said Articles.

7).Conclusion
#).Judges are the most important part of the judiciary.
#).It is important to ensure that the Judges are competent enough to handle various
issues that arise every day.
#).The appointment of Judges must be done properly and a lot of effort must be
carried out while selecting the Judges.
#).The Judges should not be transferred unnecessarily and the transfer must be done
only when there is a proper reason.
#).Judges should not be transferred for personal and political reasons.
#).Thus the government and the judiciary must consider the appointment of Judges as
a very important process and a lot of care must be taken

8).References:
www.blog.ipleaders.in
www.byjus.com
www.manifestias.com