Date: 30/11/2022

Relevance: GS-2: Structure, organization and functioning of the Judiciary, issues with the collegium system

Key Phrases: Transfer of judges in Higher Judiciary, Supreme Court collegium, Need of transfer of judges, Issues with the transfer of judges, National Judicial Appointments Commission (NJAC).

Context:

• Recently, the Supreme Court Collegium headed by Chief Justice of India recommended transfer of 7 judges of various High Courts which has drawn sharp criticism in the backdrop of opaqueness in the transfer procedure.

Key Highlights

• The seven Judges include three judges from the Telangana High Court, and two each from the Madras and Andhra Pradesh High Courts.
• There were protests against the transfer of 2 judges from Gujarat and Kerala High Courts which led the CJI to meet with the bar members of the two states.
• Although the Gujarat High Court judge’s name was excluded from the transfer list, the same was not reciprocated in case of the Kerala High court judge.
• There are reports that the Gujarat High Court Chief Justice was unaware of the impending transfer of the Justice concerned.
• Frequent transfers of puisne judges from one High Court to another makes the transfer process ‘arbitrary’ at the same bodes ill for the legitimacy of transfer proposals.
  • This has been aggravated by the fact that the Collegium heeds the demand made by one set of lawyers, but ignores that of another group.

What is the procedure of transferring judges in the higher judiciary?

• The selection and transfer of Judges of the Supreme Court and HC are made by the President in consultation with the collegium system.
• Constitutional Provisions
  • Article 222 of the Constitution makes provision for the transfer of a Judge (including the Chief Justice) from one High Court to any other High Court.
• Initiation, Proposal and Consultation:
  • The initiation of the proposal for the transfer of a Judge should be made by the Chief Justice of India (CJI).
  • 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 the Chief Justice of the High Court to which the transfer is to be affected.
  • 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 the 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 considered by the Collegium.
• Recommendation and appointment:
  • Once the proposal is referred to the Government, the Union Minister of Law would submit a recommendation to the Prime Minister who will then advise the President on the transfer of the Judge concerned.
  • After the President approves the transfer, the notification will be gazetted and the judge remains transferred.

Need of transfer of judges

• Exchange of talent: Transfer of judges may be needed for exchange of talent across the country and to prevent the emergence of local cliques in the judiciary.
• Better administration of justice and public interest: Generally transfers are intended for larger public interest and for better administration of justice throughout the country.
• Avoiding bias/ favour: When a lawyer from the bar is appointed as Judge or when a judge is promoted to HC; transfers are done to avoid instances of favoritism.
• Allegations against the judges: In instances of any complaint of corruption or any other charge which does not lead to a judge’s impeachment, the judge is transferred to another High Court.

Issues with the transfer of judges

• Lack of transparency
  • There is a high degree of opaqueness on the reasons and grounds of transfer as the collegium works behind the closed doors.
  • Also, over the years successive collegiums not putting forth names disliked by the Government makes it a biased system.
• Threat to judicial independence
  • Unwarranted and untimely transfers have always raised the issue of judicial independence as in many instances judges hearing some cases have been transferred amid the hearing.
• Punishment transfers
  • Judges have been transferred as a punishment for working against the Government when judges’s judicial verdict are causing discomfiture to the government.
• Preserving judges from the High Courts
  • Appointments to the top court seem to be the preserve of judges from the High Courts with a handful of appointments from the Bar.
• There have been no appointments from the category of distinguished jurists (under Article 124)

Way forward

• It is time to revisit this question and secure a better, broad-based and transparent method of appointing senior judges to the High Courts and the Supreme Court.
• Some nodding acknowledgement should be given to a specific provision made by the founding fathers in the Constitution
• Filling up of vacancies is a continuous and collaborative process involving the executive and the judiciary, and there cannot be a time frame for it.
• The provisions of Memorandum of Procedure related to personal factors of the judge, including his preference of places, should invariably be taken into account.
• Transfer should not be out of revenge or punishment otherwise the justice system will suffer.

Conclusion

• It is high time for a complete review of the provisions for transfer of High Court judges and to think of a permanent, independent body to institutionalize the process with adequate safeguards to preserve the judiciary’s independence guaranteeing judicial primacy.

Source: The Hindu

Mains Question:

Q. The judiciary can only be strengthened and released from political interference when the judiciary itself is willing for a change. Discuss the statement in light of the working of the opaque Collegium system in India and need of a robust institutional mechanism for appointment to the higher judiciary. (250 words).