JUDICIAL TRANSFERS
1. Context
On March 28, the Union government notified the repatriation of Justice Yashwant Varma to his parent High Court in Allahabad, where he had previously served as a judge. The decision comes amid allegations that charred currency notes were recovered from his residence after a fire. His transfer was proposed after Delhi High Court Chief Justice D.K. Upadhyaya sought an in-house inquiry into the matter. However, Justice Varma has denied the allegations, calling them a “conspiracy to malign” him
2. How are High Court judges transferred?
- Article 222(1) of the Indian Constitution grants the President the authority to transfer a High Court judge to another High Court, provided the Chief Justice of India (CJI) is consulted.
- This provision has been extensively analyzed through judicial pronouncements, particularly in three landmark cases known as the First, Second, and Third Judges cases.
- In the case of S.P. Gupta v. President of India (1981), also referred to as the First Judges case, the Supreme Court ruled that the term "consultation" with the CJI did not imply concurrence, thereby affirming the executive's dominance in judicial appointments and transfers.
- However, this interpretation was overturned in Supreme Court Advocates-on-Record Association v. Union of India (1993), commonly known as the Second Judges case. Here, the Court introduced the collegium system and held that in case of disagreement between the President and the CJI, the latter’s view would prevail.
- The judgment emphasized that judicial transfers should be guided by public interest and the need for better administration of justice. Justice J.S. Verma, who authored the ruling, further stated that the CJI must consult the Chief Justice of the concerned High Court, select Supreme Court judges, and at least one senior High Court judge or any other relevant individual, such as senior Bar members, where necessary.
- The Court reasoned that the involvement of multiple judges in the process serves as a safeguard against arbitrary decisions. Consequently, it also restricted the scope of judicial review in matters of transfer, asserting that such decisions should not be influenced by legislative debates.
- Additionally, the ruling clarified that a judge's consent is not mandatory for a transfer, whether initial or subsequent. The Third Judges case (1998) further refined the collegium system, stipulating that transfer recommendations must be made by the CJI in consultation with the four seniormost Supreme Court judges.
- It also mandated that inputs be sought from Supreme Court judges who had previously served in the High Court from which the judge was being transferred.
- Once the collegium finalizes its recommendation, the Law Minister examines it and advises the Prime Minister, who then forwards it to the President.
- Upon approval, the transfer is formalized through a gazette notification, and the judge assumes office in the new High Court
3. Criticism
- A recent report by the Geneva-based International Commission of Jurists (ICJ) has expressed serious concerns regarding judicial independence in India, pointing to increasing executive influence, lack of transparency in judicial appointments, and inadequate accountability mechanisms.
- The report emphasized that judicial transfers, often executed without the judge’s consent, are frequently justified under broad terms such as “public interest” or the “better administration of justice.”
- This lack of clarity, according to the ICJ, makes it challenging to differentiate between genuine transfers and those intended as punitive or retaliatory measures.
- To address these issues, the ICJ recommended that Parliament establish a “Judicial Council” to oversee appointments and transfers, ensuring they are conducted through a transparent, objective, and predetermined framework
4. National Judicial Appointments Commission (NJAC) Act, 2014
- To address concerns regarding the lack of transparency in the collegium system, the Narendra Modi government introduced significant reforms to judicial appointments in 2014.
- In August of that year, Parliament passed the Constitution (99th Amendment) Act, 2014, along with the National Judicial Appointments Commission (NJAC) Act, 2014, creating an independent body to replace the collegium system for appointing judges to the Supreme Court and High Courts.
- The NJAC was to be led by the Chief Justice of India (CJI) and comprised the two senior-most Supreme Court judges, the Union Law Minister, and two distinguished members from civil society.
- One of these members would be selected by a panel consisting of the CJI, Prime Minister, and Leader of the Opposition in the Lok Sabha, while the other had to be from the Scheduled Castes, Scheduled Tribes, Other Backward Classes, or be a woman.
- The amendment saw an unusual level of political consensus, passing with overwhelming support in Parliament—except for opposition from veteran jurist Ram Jethmalani—and receiving ratification from 16 State legislatures.
- Despite its swift passage, the law faced immediate legal challenges in the Supreme Court. Critics argued that the veto power granted to any two dissenting NJAC members could enable the Law Minister and the two eminent members to override the judiciary’s majority within the commission.
- On October 16, 2015, a five-judge Bench struck down the NJAC as unconstitutional in a 4:1 ruling, declaring that it violated the “basic structure of the Constitution.” The majority held that allowing the Law Minister or non-judicial members to wield veto power over a Supreme Court judge within the commission could undermine judicial independence.
- However, in a dissenting opinion, Justice Jasti Chelameswar pointed out that aside from occasional leaks, collegium proceedings remained entirely inaccessible—even to Supreme Court judges who were not fortunate enough to become the Chief Justice of India
5. Way Forward
Justice Varma’s transfer appears to be aimed at preventing an administrative deadlock in Delhi. As the third senior-most judge, he was part of both the High Court Collegium and several key administrative committees, and his continued presence in the capital could have hindered critical decision-making. There is no specified timeline for the three-member inquiry committee investigating the allegations against him. While reviewing a petition seeking the registration of an FIR against the judge, the Chief Justice of India dismissed it as “premature,” emphasizing that any decision regarding criminal proceedings or a parliamentary motion for removal would be contingent on the committee’s findings.
Meanwhile, the Supreme Court, through a press release, announced that the Chief Justice of the Allahabad High Court has been instructed not to assign Justice Varma any judicial responsibilities for the time being. This situation has also reignited political debates surrounding judicial appointments. Vice President Jagdeep Dhankhar commented that the outcome “would have been different” if the Supreme Court had not invalidated the “historic legislation” that sought to establish the NJAC
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For Prelims: Collegium system, National Judicial Appointments Commission (NJAC), Supreme court, High court, Intelligence Bureau (IB), First Judges case, Second Judges Case, Third Judges Case, Article 124(2), Article 217, Law Commission, and 99th Constitutional Amendment Act.
For Mains: 1. What are the two systems of the appointment of Judges that has triggered the fresh debate on the Judicial system in India? (250 Words).
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Previous year Question
1. With reference to the Indian judiciary, consider the following statements: (UPSC 2021)
1. Any retired judge of the Supreme Court of India can be called back to sit and act as a Supreme Court judge by the Chief Justice of India with the prior permission of the President of India.
2. A High Court in India has the power to review its own judgment as the Supreme Court does.
Which of the statements given above is/are correct?
A. 1 only
B. 2 only
C. Both 1 and 2
D. Neither 1 nor 2
Answer: A
2. In India, Judicial Review implies (UPSC 2017)
A. the power of the Judiciary to pronounce upon the constitutionality of laws and executive orders
B. the power of the Judiciary to question the wisdom of the laws enacted by the Legislatures
C. the power of the Judiciary to review all the legislative enactments before they are assented to by the President
D. the power of the Judiciary to review its own judgments given earlier in similar or different cases
Answer: A
3. Consider the following statements:
1. The motion to impeach a Judge of the Supreme Court of India cannot be rejected by the Speaker of the Lok Sabha as per the Judges (Inquiry) Act, 1968.
2. The Constitution of India defines and gives details of what constitutes 'incapacity and proved misbehavior' of the Judges of the Supreme Court of India
3. The details of the process of impeachment of the Judges of the Supreme Court of India are given in the Judges (Inquiry) Act, of 1968.
4. If the motion for the impeachment of a Judge is taken up for voting, the law requires the motion to be backed by each House of the Parliament and supported by a majority of the total membership of that House and by not less than two-thirds of total members of that House present and voting.
Which of the statements given above is/are correct?
A. 1 and 2
B. 3 only
C. 3 and 4 only
D. 1, 3 and 4
Answer: C
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Source: The Hindu
