Opaqueness in Judicial Transfers - Daily Current Affair Article

Relevance: GS Paper- 2: Indian Polity: Judiciary

Why in News:

  • Supreme Court collegium recommended the transfer of the Chief Justice of the Madras High Court to the Meghalaya High Court.
  • The transfer has come within 10 months of his assuming office, raising the question whether he was being punished for some obscure reason. 
  • Meghalaya HC has only 4 judges while Madras High court has sanctioned strength of 75. So, the transfer of CJI of Madras HC to Meghalaya HC seems like a punishment.
  • Absence of any justified reason, or any known circumstance, has given rise to speculation on whether transfer is based on any rational approach and judicious observations while seeking accountability from the Government and other institutions.
  • Previously also, Justice Vijaya K. Tahilramani resigned after being shifted from Madras to the Meghalaya High Court at a time when she was the country’s senior-most Chief Justice.

Procedure of transfer of HC judge:

  • 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 the Judge for his first or subsequent transfer would not be required.
  • 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 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 once referred to the Government, 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.

Issues in Judicial transfers:

Autocratic

  • The collegium is creation of supreme court and not a constitutional body. The constitution of the supreme court collegium can be perceived as an act of the judiciary to control the appointments and transfer in the judiciary.

Monopoly in appointments

  • The essence of democracy comes under stake as under the collegium system a judge appoints a judge.

Fear of rampant nepotism 

  • The Law Commission criticized collegium and has expressed their concerns regarding incorrect appointments which may be based on past favors or nepotism.

Not always based on merit

  • The system recommends the appointment of judges without conducting the due diligence of the available talents in the legal system. The system fails to ascertain the merit of the candidates.

Lack of transparency

  • There are no formal written down procedures or rules or any sort of criteria that the collegium follows while appointing, elevating, and transferring the judges. 
  • There are selective publications by the collegium. The public has no knowledge as to the frequency of the meeting of the collegium or what norms are followed by the collegium.

Appointment failures

  • The collegium failed to appoint judges as per the vacancies. This is leading to increasing backlog in courts.

Constitutional Provisions:

  • Article 222 (1) of the Constitution deals with the transfer of a High Court judge to another High Court. 
  • It says that the “President may, after consultation with the Chief Justice of India, transfer a judge from one High Court to any other High Court.”.
  • The judge who is being transferred is also entitled to receive a compensatory allowance.
  • The Supreme Court, in the Second Judges Case of 1993, had held in a majority judgment that consent of the judge was not necessary for transferring him out, provided it was done with the full and effective consultation with the Chief Justice of India.
  • The Third Judges’ case expanded the collegium to include the five senior-most judges, including the CJI.
  • The K Ashok Reddy case relied on the decision of the Second Judges’ case and held that the primacy of the judiciary in the matter of appointments.
  • The Chief Justice of India is justly empowered to transfer the head of any High Court in the interest of the “better administration of justice”.
  • The transfer should be done in public interest and not as a punishment.

Way Forward:

  • Any decisions, factors and reasons related to transfer/appointment should be put in the public domain to instill trust in minds of the public.
  • The central government should also step in and clear all the doubts raises about the appointment mechanism and make it a transparent process.

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