You are transferred, My Lord. But why?

Justice Bibek Chaudhuri, who has been transferred from the Calcutta High Court to the Patna High Court, said at his farewell function on November 21 that there was a need to reconsider Article 222 of the Constitution dealing with the transfer of a judge from one high court to another. He is among the 26 high court judges to have been recommended for transfer since this April. On November 3, the Union government notified the transfer of five in this list, including Justice Chaudhuri.

The high court judge’s appeal for review of Article 222 has once again brought to attention the contentious issue of transfers in the judiciary. Transfer orders become controversial when these are perceived to be punitive actions. As a matter of practice, the Supreme Court and the government do not disclose the reason for a transfer, leaving room for speculation. For instance, in 2022, the Gujarat High Court Advocates’ Association had passed a resolution against the transfer of Justice Nikhil Kariel from the Gujarat High Court to the Patna High Court. Describing Justice Kariel as the “finest, upright, honest and unbiased” judge, the resolution termed the transfer as “death of the independence of the judiciary”.

In Telangana, high court lawyers boycotted work against the proposed transfer of Justice A. Abhishek Reddy. Madras High Court lawyers too expressed their displeasure over the reported recommendation to transfer Acting Chief Justice T. Raja to Rajasthan.

In 2021, the Madras High Court witnessed another round of protests when Chief Justice Sanjib Banerjee was transferred to the Meghalaya High Court, reportedly for his adverse observations on the Election Commission. Two years ago, controversy erupted when Justice Vijaya K. Tahilramani, another chief justice of the Madras High Court, which has 75 judges, was transferred to the Meghalaya High Court—a new court with three judges. She chose to resign.

Political motive has been attributed to several judicial transfers in recent times. In 2015, Delhi High Court judge Justice Rajiv Shakdher received transfer orders after ruling to defend a Greenpeace activist’s right to travel and express dissent. In 2017, Karnataka High Court judge Justice Jayant Patel was transferred to the Allahabad High Court. There was a speculation that he was paying the price for ordering a Central Bureau of Investigation (CBI) probe into the Ishrat Jahan encounter case. He subsequently resigned. In 2020, Justice S. Muralidhar from the Delhi High Court was transferred just days after his sharp criticism of police inaction in the 2020 Delhi riots.

Many critics draw parallels between these transfers and what happened during the Emergency when 16 judges were transferred, reportedly as punishment for passing orders unfavourable to the government of the day.

Who can transfer a judge?

Article 222 of the Constitution provides for the transfer of high court judges, including the chief justice. It says the president of India, after consultation with the chief justice of India, may transfer a judge from one high court to another. This means the Union government can transfer a judge only after consulting the chief justice of India.

From time to time, there have been proposals that one-third of the composition of every high court be judges from other states. In 1983, the Union government had announced that chief justices of a high court would be from another state and a third of the judges should also be from outside. “With our transfer, it is the beginning of the implementation of that policy,” said Justice Chaudhuri at his farewell event.

In the Union of India vs. Sankalchand Himatlal Sheth (1977) case, the Supreme Court rejected the idea that high court judges could be transferred only with their consent. It reasoned that the transfer of power could be exercised only in public interest and that the president of India was under an obligation to consult the chief justice of India.

In S.P. Gupta vs. President of India (1981), also known as the ‘Judges’ Transfer case’, and later the First Judges case, the Supreme Court, in a majority verdict, ruled that consultation with the chief justice did not mean “concurrence” with respect to appointments. In effect, it emphasised the primacy of the executive in the matter of appointments and transfers.

However, this position was overruled in the ‘Second Judges case’ in 1993, which said that the opinion of the chief justice of India, formed after taking into the account the views of seniormost judges, would have primacy. In the 1998 Third Judges case, this position was reinstated. Since then, appointments and transfers are being made by a Supreme Court Collegium comprising the chief justice of India and two seniormost judges of the top court.

In the collegium era, the proposal for transferring a high court judge, including a chief justice, should be initiated by the chief justice of India, “whose opinion in this regard is determinative”. The consent of the judge to be transferred is not required. For transferring a judge other than the chief justice, the chief justice of India takes 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. The chief justice of India also considers the views of one or more Supreme Court judges who are in a position to offer their views in the process of deciding whether a proposed transfer should take place or not.

In the case of transfer of a chief justice, only the views of one or more knowledgeable Supreme Court judges need to be considered. The views should all be expressed in writing, and they should be considered by the full Supreme Court Collegium, which includes the chief justice of India and four seniormost judges. The collegium recommendation is sent to the Union law minister, who submits it to the prime minister. The prime minister then advises the president on approving the transfer.

There have been frictions between the Supreme Court Collegium and the Union government over recommendations for transfer. For instance, in April 2023, the Supreme Court Collegium recalled its proposal made in September 2022 to transfer Justice Muralidhar, then chief justice of the Orissa High Court, to the Madras High Court as the Centre took no action on its recommendation. Earlier this year, Justice T. Raja continued to serve as acting chief justice of Madras High Court till his retirement despite the collegium’s recommendation to transfer him to the Rajasthan High Court. Justice Siddharth Mridul’s transfer in October as chief justice of the Manipur High Court was held back for months until the Supreme Court prodded the government.

On multiple occasions, the Supreme Court has raised objections to delays by the Union government in notifying the transfer of judges. The apex court has recently expressed unhappiness over the manner in which the Centre has been “selectively” notifying transfers and appointment of judges for high courts and asked the government to notify all appointments in the order of recommendations to maintain the seniority of such people when they are appointed as judges. Justice Chaudhuri’s transfer was recommended on August 10.

No transparency

The lack of transparency over the reasons behind judicial transfers has often made those controversial. The Supreme Court has often insisted that transfer recommendations are made in the interest of better administration of justice. But the top court’s resolutions on transfers attribute no specific reason. The resolutions until 2020 provided brief reasons for the transfers. Nearly two dozen resolutions indicated that the transfers were done “in the interest of better administration of justice”. Four recommendations indicated that the transfers were done to fill vacancies. After 2020, the resolutions did not give reasons.

Those who are batting for secrecy argue that if the reason for transfer is some adverse opinion on a judge’s functioning, disclosure would impinge on the judge’s performance and independence in the court to which he is transferred. Critics counter this by saying that not giving reasons lead to speculation that the transfer was punitive for some inappropriate actions by the judge concerned, tarnishing his or her reputation. Besides, even if a judge is transferred on disciplinary grounds, the public must be made aware as to what those disciplinary reasons are. And if it is for administrative reasons, the reputation of the judge must be protected by giving out the correct reasons for the transfer, they argue.

Moreover, transfers not necessarily mean punishment. They can be requested by the judge concerned or made as part of a promotion to the post of chief justice. The second possibility is much higher, as numbers show. Judges selected for transfers tend to be the ones who end up getting promotions. The KHOJ (Know Your High Court Judges) dataset released in 2022 found that around 71 per cent of the judges who were transferred once went on to become chief justices. More than half the high court judges elevated to the Supreme Court were transferred at least once.

The high number of transfers is also adding to the debate over judicial transfers. Between 1950 and 1976, only 25 transfers took place. In contrast, 128 recommendations have been made for transfers between 2017 and 2023. That’s perhaps the reason why Justice Chaudhuri also called for Article 222 of the Constitution to be used “sparingly”. “With all humility, I must say there are several judicial pronouncements which lay down that Article 222 should be looked into and should be considered very sparingly,” he said.

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