Transfer of High Court Judges | Indian Constitution
Transfer.—Now the power to transfer of the High Court Judges remains no more a method of control over the High Court by the Union Government as the Supreme Court has prescribed a procedure for the purpose in a Reference made by the President of India in exercise of his powers under Art. 143. The Supreme Court opined that the Chief Justice of India should obtain the views of the Chief Justice of the High Court from which the proposed transfer is to be effected as also that of the Chief Justice of the High Court to which the transfer is to be effected (as was stated in the Second Judges case in 1993). The Chief Justice of India should also take into account the views of one or more Supreme Court Judges who are in position to provide material which would assist in the process of deciding whether or not a proposed transfer should take place. These views should be expressed in writing and should be considered by CJI and the four senior most Judges of the Supreme Court. These views and those of each of the four senior most Judges should be conveyed to the Govt, of India with the proposal of transfer.
What applies to the transfer of Judges of a High Court applies as well to the transfer of the Chief Justice of a High Court as a CJI. of another High Court except that in this case, only the views of one or more knowledgeable Judges need be taken into account.
These factors, including the response of the High Court Chief Justice or the puisne Judge proposed to be transferred, to the proposal to transfer him, should be placed before the collegium the CJI and his first four puisne Judges—to be taken into account by it before reaching a final conclusion on the proposal.
Unless the decision to transfer has been taken in the manner aforestated, it is not decisive and does not bind the Govt, of India and shall be subject to judicial review. However, the situation has completely changed after creation of National Judicial Appointment Commission. Now the NJAC replaced the collegium system for die appointment of judges as mandated in the existing preamended constitution by a new system. Along with the Constitution Amendment Act, the National Judicial Appointments Commission Act, 2014, was also passed by the Lok Sabha and the Rajya Sabha and ratified by 16 state legislatures, to regulate the functions of the National Judicial Appointments Commission.
(b) The constitution and organisation of High Courts and the power to establish a common High Court for two or more States and to extend the jurisdiction of a High Court to, or to exclude its jurisdiction from, a Union Territory, are all exclusive powers of the Union Parliament.
It should be pointed out in the present context that there are some provisions introduced into the original Constitution by subsequent amendments, which affect the independence of High Court Judges, as compared with Supreme Court Judges :
(a) Art. 224 was introduced by substitution, in 1956, to provide for the appointment of additional Judges to meet ‘any temporary increase in the business of a High Court’. An additional Judge, so appointed, holds office for two years, but he may be made permanent at the end of that term. There is no such corresponding provision for the Supreme Court. It was introduced in the case of the High Courts because of the problem of arrears of work, which was expected to disappear in the near future. Now that the problem of arrears has become a standing problem which is being met by the addition of more Judges, there is no particular reason why the make-shift device of additional appointment should continue. The inherent vice of this latter device is that it keeps an additional Judge on probation and under the tutelage of the Chief Justice as well as the Government as to whether he would get a permanent appointment at the end of two years. So far as the judicial power of a High Court Judge is concerned, he ranks as an equal to every other member of a Bench and is not expected, according to any principle relating to the administration of justice, to ‘agree’ with the Chief Justice or any other senior member of a Bench where his learning, conscience or wisdom dictates otherwise, or to stay his hands where the merits of a case require a judgment against the Government. The fear of losing his job on the expiry of two years obviously acts as an inarticulate obsession upon an additional Judge.
(b) Similarly, Cl.(3) was inserted in Art 217 in 1963, giving the President in consultation with the Chief Justice of India, the final power to determine the age of High Court Judge, if any question is raised by any-body in that behalf. By the same amendment of 1963 (15th Amendment), C1.(2A) was inserted in Art. 124, laying down that a similar question as to the age of a Supreme Court Judge shall be determined in such manner as Parliament may by law provide. A High Court Judge’s position has thus become not only unnecessarily inferior to that of a Supreme Court Judge but even to that of a subordinate Judicial Officer, because any administrative determination of the latter’s age is open to challenge in a Court of law, but in the case of a High Court Judge, it is made ‘final’ by the Constitution itself.9 There is, apparently, no impelling reason why a provision similar to Cl. (2A) to Art 124 shall not be introduced in Art. 217, in place of Cl. (3), in question.
(c) Another agency of control over High Court Judges is the provision in Art. 221(1) for their transfer from one High Court to another, which has been given a momentum in 1994 by transferring as many as 50 Judges at a time.19 In order that the power of the President to order such transfer is not used as a punitive measure, the Supreme Court has laid down that while no consent of the Judge concerned would be required, the President would not be competent to exercise the power except on the recommendation of the Chief Justice of India.
Now, the Constitutional (Ninety Ninth Amendment) Act, 2014 and National Judicial Appointment Commission Act, 2014 have been enforced w.e.f. 13.04.2015 and as such the political class and civil society have an equal voice, along with the judiciary, in the appointments and transfer of judges in the highest judiciary.