Article 22 deals with the transfer of judges and it states that the President may, after consultation with the Chief Justice of India (CJI), transfer a judge from one high court to another. The President cannot issue a transfer order without the Chief Justice of India’s approval. The chief justice, on the other hand, can only recommend such a move after a collegium resolution. A judicial appointment or transfer is made by the President’s orders, as required by law.

How did the Supreme Court analysed Article 222

• In the Sankalchand H Sheth case, Justice Bhagwati stated that the transfer of a judge from one court to another causes the individual considerable damage. As a result, the approval of the judge who is to be transferred should be considered. He further claimed that vesteding transfer power completely in the president weakens judicial independence and jeopardises the Constitution’s core elements.
• Supreme Court decided three cases popularly known as the “First, Second and Third Judges’ Cases”, which interpreted Article 222 and its working. Cumulatively, the First and Second Judges’ cases resulted in the formation of the Collegium System by interpreting “consultation” with the CJI to really mean “concurrence”. Such concurrence is of the Supreme Court as an institution and is arrived at by the CJI upon discussion with the two senior-most judges. The Third Judges’ case expanded the collegium to include the five senior-most judges, including the CJI.
• The Supreme Court concluded in the K Ashok Reddy case that the judiciary’s precedence in matters of appointments and transfers puts the judicial element into the process. There is no need for further judicial review to check for executive arbitrariness or excess because the process of transfer occurs with the approval of senior members of the court.

Issues associated

• When reasons for transfer are not known, it leads to speculation that only inconvenient judges get transferred.
• This could be seen as degrading the work a judge is doing.
• Lesser transparency
• Possibility of favouritism, bias or governmental interference.

Way forward

• NJAC
• In the Sankalchand Sheth case 44 years ago, Justice Bhagwati’s view on transfers was arguably the correct one, with wider applicability in today’s day. If transfers are made in the “public interest,” the public has the right to know why.
• Material examined before or during the deliberation of a judge’s transfer should be communicated with the concerned judge and all parties.
• The reasons for their relocation should be communicated to the concerned judges and other parties in advance. This will aid in the system’s transparency and trustworthiness.

There is a need for transparency in judicial functioning to dispel all perceptions of favouritism, bias, or governmental intervention when the judiciary misses no chance to support the basic structure doctrine and retain its independence at all costs. It is not only in the “public interest,” but it is also in the best interests of the legal system as a whole.

How to structure:

1. Give an introduction about judiciary
2. Discuss the Constitutional provisions of judicial transfers.
3. Analyse the various issues associated with this process
4. Suggest way forward

Reference:

1. https://indianexpress.com/article/opinion/columns/theres-a-need-for-transparency-in-transfer-of-judges/