News: Supreme Court collegium recommended the transfer of the Chief Justice of the Madras High Court to the Meghalaya High Court. Chennai bar commission has in fact raised many valid questions.
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What does the constitution say about the transfer of high court judges?
Article 222:It deals with the transfer of judges. It states that the President may, after consultation with the Chief Justice of India (CJI), transfer a judge from one high court to another.
How did SC cases interpret Article 222 in different cases?
In the Sankalchand H Sheth case: Justice Bhagwati said that the transfer of a judge from one court to another inflicts many injuries on the individual. So, the consent of the judge proposed to be transferred should be taken into consideration. He also held that if the power of transfer is vested solely with the executive, it undermines judicial independence and impacts the basic features of the Constitution.
In the K Ashok Reddy case: Court held that primacy of the judiciary in the matter of appointments and transfers introduces the judicial element in the process. As the process of transfer happens with the concurrence of the senior members of the judiciary, there is no need of further judicial review to check for executive’s arbitrariness or excess.
How should transparency be maintained?
The concerned judges and the other stakeholders should be informed beforehand about the reasons behind their transfer. This will help to build transparency and trust in the system.
Source: This post is based on the article “There’s a need for transparency in transfer of judges” published in the Indian Express on 17th November 2021.