HC Judges’ Transfer Issue

As many as five recommendations made by the Supreme Court Collegium to transfer high court judges are pending with the government for over six months.

• The disclosure came in response to a query about the status of pending Collegium recommendations in Lok Sabha.

Indian Constitution on the Transfer of Judges

• Article 222 Provisions: Under Clause (1) of Article 222, a judge of one High Court may be transferred to another High Court by the President after consulting with the Chief Justice of India.
  • Judges transferred under this provision are entitled to a compensatory allowance, as determined by Parliament.
• Transfer Process
  • The transfer process is initiated by the Chief Justice of India, whose opinion is determinative in such matters.
  • The recommendation is reviewed by the Supreme Court Collegium, which consists of the CJI and the four senior-most judges of the SC.
  • Judges’ consent is not required for High Court transfers.
• Judicial Review of Transfers: Judicial review in matters of transfer is extremely limited, as established in the S.C. Advocates-on-Record case (1994).
  • A transfer can only be challenged if it was made without the recommendation of the Chief Justice of India.
  • Bias or other grounds are excluded due to the element of plurality in the decision-making process.

About Collegium System

• Supreme Court Collegium: Composed of the Chief Justice of India and the four senior-most judges of the Supreme Court.
  • The Supreme Court Collegium is responsible for recommending appointments, transfers, and elevations of judges to the 25 High Courts and the Supreme Court.
  • After these recommendations are processed by the central government, the President issues final orders for their implementation.
• High Court Collegium: Composed of the Chief Justice of the High Court and its two senior-most judges.
  • It recommends appointments and elevations specific to the High Courts

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Evolution of the Collegium System

• First Judges Case (1981):  Held that the Chief Justice of India’s recommendation could be refused by the executive for “cogent reasons.”
  • Established executive primacy over the judiciary in judicial appointments.Second Judges Case (1993): Introduced the Collegium system by interpreting “consultation” as “concurrence.”
  • Determined that the CJI’s opinion must reflect institutional consensus, formed in consultation with the two senior-most SC judges.
• Third Judges Case (1998): Expanded the Collegium to a five-member body comprising the CJI and the four senior-most judges of the Supreme Court.
• Fourth Judges Case (2015): Struck down the NJAC Act, 2014, and the associated constitutional amendment, upholding the Collegium system to protect judicial independence.