Transfer of Judges

Why in news?

• The news of the Supreme Court collegium recommending Madras High Court Chief Justice Sanjib Banerjee’s transfer to Meghalaya High Court has met with controversy.
• Justice Banerjee’s strong record of holding the state to account has led to some people raising concerns over Emergency-style “punishment” transfers.

More about the news:

• Banerjee is being transferred from the Madras High Court, one of the biggest in the country, to Meghalaya High Court, one of the smallest.
• While all high courts in the country are equal in law, transfers from bigger courts to smaller ones are often seen as punitive.

Transfer of Judges

• The President can transfer a judge from one high court to another after consulting the Chief Justice of India.
• On transfer, he is entitled to receive in addition to his salary such compensatory allowance as may be determined by Parliament.
• In 1977, the Supreme Court ruled that the transfer of high court judges could be resorted to only as an exceptional measure and only in public interest and not by way of punishment.
• Again in 1994, the Supreme Court held that judicial review is necessary to check arbitrariness in transfer of judges. But, only the judge who is transferred can challenge it.
• In the Third Judges case (1998), the Supreme Court opined that in case of the transfer of high court judges, the Chief Justice of India should consult, in addition to the collegium of four seniormost judges of the Supreme Court, the chief justice of the two high courts (one from which the judge is being transferred and the other receiving him).
• Thus, the sole opinion of the chief justice of India does not constitute the ‘consultation’ process.

PRACTICE QUESTION:

Which of the following statements are correct regarding transfer of High Court judges?

1. Constitution empowers President to transfer a judge from one high court to another

2. Transfer of high court judges are outside the purview of judicial review

Select the correct answer using the code given below:

(a) 1 only

(b) 2 only

(c) Both 1 and 2

(d) Neither 1 nor 2

Answer