Why in News?

• The frequent criticism that the Collegium system of judicial appointments is opaque, appears to be more valid in the case of transfers of judges from one High Court to another.

Background:

• A fresh round of transfers among the many that have occurred in recent years has brought the contentious topic to the forefront once more.
• Lawyers recently raised the matter of the transfer of a Gujarat HC judge (Justice Kariel) to the Chief Justice of India (CJI), citing rumours that the Gujarat HC Chief Justice was uninformed of the impending transfer.

The Indian Constitution on the transfer of judges:

• Article 222: It provides for the transfer of HC judges, including the Chief Justice. The President, after consultation with the CJI, may transfer a judge from one HC to any other HC and a compensatory allowance is provided to the transferred judge.
• Interpretation: The executive could transfer a judge, but only after consulting the CJI. 

The Supreme Court’s view on the issue:

• The SC (in 1977) rejected the idea that HC judges can be transferred only with their consent, as the transfer powers can be exercised only in the public interest. Also, the President is under an obligation to consult the CJI.
• In S.P. Gupta vs. President of India (1981), also known as the Judges Transfer Case/the First Judges Case, the SC ruled that the consultation with the CJI did not mean ‘concurrence,’ thus giving primacy to the executive in the matter of appointments and transfers.
• However, this position was overruled in the ‘Second Judges Case’ (1993). The opinion of the CJI, formed after taking into account the views of senior-most judges, was to have primacy.
• Since then, appointments are being made by the Collegium.

The current procedure for transfers:

• The proposal for transferring a HC judge (including a Chief Justice) should be initiated by the CJI and the consent of the judge is not required. All transfers are to be made in the public interest.
• For transferring a judge other than the Chief Justice, the CJI should take the views of –

• The Chief Justice of the court concerned, as well as the Chief Justice of the court to which the transfer is taking place.
• One or more SC judges

• The views, expressed in writing, should be considered by a full Collegium of five – the CJI + 4 senior-most judges of the SC.
• The recommendation is sent to the Union Law Minister → the Prime Minister → the President.

Need for the transfer of judges:

• To exchange talent across the country.
• To prevent the emergence of local grouping in the judiciary. There have been proposals that one-third of the composition of every HC should have judges from other States.

What makes transfers controversial?

• The public feel that there is a punitive element behind the decision.
• As a matter of practice, the SC and the government do not disclose the reason for a transfer.
• The power of transfer has always been seen as a possible threat to judicial independence.

Attempts to reform the Appointment System:

• The attempt made to replace it by a ‘National Judicial Appointments Commission’ was struck down by the court in 2015 on the ground that it posed a threat to the independence of the judiciary.

Related Constitutional Provisions:

• Article 124(2) of the Indian Constitution provides that the Judges of the Supreme Court are appointed by the President after consultation with such a number of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose.
• Article 217 of the Indian Constitution states that the Judge of a High Court shall be appointed by the President consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court.

Way Forward:

• 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. However, it is time to think of a permanent, independent body to institutionalize the process with adequate safeguards to preserve the judiciary’s independence guaranteeing judicial primacy but not judicial exclusivity.
• It should ensure independence, reflect diversity, demonstrate professional competence and integrity. Instead of selecting the number of judges required against a certain number of vacancies, the collegium must provide a panel of possible names to the President to appoint in order of preference and other valid criteria.