TRANSFER OF HIGH COURT JUDGES

Submitted by:

Priyanshu Raj

B.B.A., LL.B (Hons.)

Roll: 2030

Submitted to:

DR. Pratyush Kaushik

FACULTY OF LEGAL LANGUAGE COMMUNICATION SKILLS

(Project Report)

Chanakya National Law University

Nyaya Nagar, Mithapur, Patna- 800 001

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 DECLARATION

I Priyanshu Raj, hereby declare that, the project work entitled, ‘TRANSFER OF HIGH COURT
JUDGES’ submitted to CNLU, Patna is record of an original work done by me under the
guidance of, Faculty Member, CNLU, Patna.

Priyanshu Raj

B.B.A. LL.B. (Hons.)

Roll No. – 2030

1st Semester

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 ACKNOWLEDGEMENTS

First and foremost, I would like to thanks my Faculty of legal language and communication
skills, Dr. Pratyush Kaushik , for giving the opportunity to work on this project named –
‘TRANSFER OF HIGH COURT JUDGES’. His guidance and support has been instrumental
while making my project on this topic.

I would like to all authors, writers Internet sources and columnists whose ideas and works have
been made use in my Project. My heartfelt gratitude also goes to all staff and administration of
CNLU for the infrastructure in the form of library that was a great source of help in completion
of this Project.

I also thank my friends for their precious inputs which have been very useful in the completion
of this Project. I would also like to thank my parents, my seniors, dear colleagues, and friends in
the University, who have helped me with ideas about this work.

I hope you will appreciate my true work which is indeed a hard work and a result of my true
research and work.

Priyanshu Raj

B.B.A. LL.B. (Hons.)

Roll No. – 2030

1st Semester

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 RESEARCH OBJECTIVES
The objectives behind this research are to know:

 How transfer of high court judges take place.

 What are the process of transfer.
 Reason of transfers.
 Laws deals with transfer of judges of high court.

RESEARCH METHODOLOGY
The research work is totally doctrinal method. It includes primary as well as secondary sources

 Books
 Case law
 Journals
 Articles
 web sources

LIMITATIONS

Area of limitations – Every study has own limitation due to the limited time, lack of sufficient
financial sources and limited area of survey/study of the subject matter.

MODE OF CITATION
The researcher follows the Blue Book mode of citation.

HYPOTHESIS
Under what circumstances the transfer of judges of high court take place. And is there is
transparency in the transfer of the judges of high court.

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 TABLE OF CONTENTS
Contents
1 INTRODUCTION........................................................................................................................6
1.1 TRANSFER OF JUDGES: HISTORICAL BACKGROUND..............................................7
1.2 The Drafting Committee.....................................................................................................8
2. TRANSFER OF JUDGES...........................................................................................................8
2.1 TRANSFER OF JUDGES AND CONSENT OF THE JUDGE..........................................11
2.2 Landmark Judgments...............................................................................................................13
2.3 Reason for transferring.........................................................................................................14
3 collegium....................................................................................................................................16
3.1Who Heads the Collegium System?..................................................................................16
3.2What are the Procedures for Judicial Appointments?.......................................................17
3.3 What is Critical about the Collegium System?...............................................................17
3.4What were Attempts to reform the Appointment System?...............................................18
4 Birth of the Collegium................................................................................................................18
4.1Transfer Procedure – High Curt Judges................................................................................19
SUGGESTION AND CONCLUSION..........................................................................................20

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1. INTRODUCTION
Judiciary in our country is the main pillar of democracy which helps in the smooth functioning of
democracy. Judges are the main aspects of the judiciary. It is mandatory that the judges have to
be efficient in order for the judiciary to be successful. There are many famous judges in our
country who have brought out a lot of changes through their judgments which led to the overall
development of this country. Judges are respected in our country and people have lots of faith
and hopes on them, thus it is necessary to make sure that the appointment of judges is proper and
not biased. Various provisions of our Indian Constitution deals with the appointment of Judges
which has to be followed in every aspect of appointment.
The transfer of High Court judges is a subject which evoked much public attention' recently after
the announcement by the Union Government of its decision to appoint one-third' of the judges
and the Chief Justices' of the High Courts from outside the State, and the Supreme court's verdict
on transfer of judges.

In this paper, an attempt is made, to study the constitutional provision, on the transfer of judges
in the light of the concept of independence of the judiciary, one of the pillars of a free
democracy.

In India, the Transfer of Judges undergoes a long process, where the “Chief justice” makes the
final decision in which state and at which “High court” the particular judge would be transferred.
However, after making the final decision, the responsibility is handed over to the “President”
who advocates the transfer procedure of that particular judge. However, various judges have
opined that the exact parameters and reasons of the transferring that triggers this transfer
procedure of “high court judges”, are not clear enough. In addition, after getting the approval
from the “Central Government”, the existing “Collegium” takes the transfer decision under its
hand. Moreover, a judge goes through a wide range of constitutional laws and procedures and
hands over the case to another judge.

1.1 TRANSFER OF JUDGES: HISTORICAL BACKGROUND

Under the Government of India Act, 1935, there was no provision directly dealing with the
transfer of judges. But, in 1944 Section 220 of the Government of India Act dealing with the
constitution of' High Courts 'Was amended and a' new clause was introduced (Clause c) in

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Article 220(2) which provided that "the office of a judge shall be vacated by his being appointed
by His Majesty to be the judge of the Federal Court or of another High Court."' This provision
clearly is a pointer to the existence of the practice of appointing a sitting judge of one High'
Court as' a judge of another High Court. But, nowhere in the provision the Word "transfer" was
used and therefore it is not sure whether this provision was really intended for transfer of judges.
When the Constitution was being drafted, the Drafting Committee did not incorporate any
provision for transfer in the Draft Constitution. But, Clause (c) of the' proviso to Article 193(1)
of the Draft Constitution had copied Section 220(2)(c) of the Government of India Act and this
provided for vacation of office of a judge on his being appointed by the President to be the judge
of the Supreme Court or of any other High Court. During the discussion of the Draft Constitution
in the Assembly, an amendment was 'moved by two members, Mr. R. R. Diwakar and Mr. V. V.
Krishna Moorthy Rao. They suggested the introduction of para (d) of the proviso to Clause (1) of
Article 193 providing that "Every judge of the High Court shall be liable to be transferred to
other High Courts." 22 But the Drafting Committee felt that this amendment was unnecessary
because there was no bar under Article 193 to a judge of one High Court being appointed a judge
of another High Court, and clause (c) of the proviso to Clause (1) of Article 193 clearly provided
that the office of the judge shall be vacated by his being appointed by the President to be a judge
of the Supreme Court or of any other High Court.

However, the Drafting Committee subsequently decided to incorporate an express provision for
the transfer of judges. According to this provision, the President was given the power to transfer
a judge from one High Court to another High Court, within the territory of India. 24 Provision
was also made for compensatory allowance for the judges transferred away from their home
States, but the quantum was left to be decided by Parliament by law and until so determined such
allowance as the President may by order fix. 25 The Constituent Assembly while discussing the
revised draft felt that the power to transfer judges should not be completely vested in the
President which would lead to abuse of power and therefore an amendment which required the
President of India to consult the Chief Justice of India before exercising the power of transfer
was adopted by the Assembly. Thus Article 222(1) which was finally approved by the Assembly
provided that the President may transfer a judge of a High Court within the territory of India
after consultation with the Chief Justice of India.26 In 1956 following State reorganisation Act
1956 it was felt necessary that provision for compensatory allowance be omitted in order to
facilitate easy movement of judges to newly constituted High Courts. Thus,

this provision was omitted by Constitution (7th Amendment) Act, 1956.28 However, this was re-
introduced into the Constitution by the Constitution (15th Amendment) Act, 1963.

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Drafting committee on
transfer-the Drafting
Committee did not
incorporate any
provision for transfer in the
Draft Constitution. But, Clause
(c) of the' proviso to Article
193(1) of the Draft Constitution
had copied Section 220(2)(c) of
the Government of India
Act and this provided for
vacation of office of a judge on
his being appointed by the

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President to be the judge of the
Supreme Court or of any other
High Court
the Drafting Committee did
not incorporate any
provision for transfer in the
Draft Constitution. But, Clause
(c) of the' proviso to Article
193(1) of the Draft Constitution
had copied Section 220(2)(c) of
the Government of India
Act and this provided for
vacation of office of a judge on
his being appointed by the

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President to be the judge of the
Supreme Court or of any other
High Court
the Drafting Committee did
not incorporate any
provision for transfer in the
Draft Constitution. But, Clause
(c) of the' proviso to Article
193(1) of the Draft Constitution
had copied Section 220(2)(c) of
the Government of India
Act and this provided for
vacation of office of a judge on
his being appointed by the

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President to be the judge of the
Supreme Court or of any other
High Court
the Drafting Committee did
not incorporate any
provision for transfer in the
Draft Constitution. But, Clause
(c) of the' proviso to Article
193(1) of the Draft Constitution
had copied Section 220(2)(c) of
the Government of India
Act and this provided for
vacation of office of a judge on
his being appointed by the

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President to be the judge of the
Supreme Court or of any other
High Court
the Drafting Committee did
not incorporate any
provision for transfer in the
Draft Constitution. But, Clause
(c) of the' proviso to Article
193(1) of the Draft Constitution
had copied Section 220(2)(c) of
the Government of India
Act and this provided for
vacation of office of a judge on
his being appointed by the

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President to be the judge of the
Supreme Court or of any other
High Court
1.2 The Drafting Committee

The Drafting Committee did not incorporate any provision for transfer in the Draft Constitution.
But, Clause (c) of the' proviso to Article 193(1) of the Draft Constitution had copied Section
220(2)(c) of the Government of India Act and this provided for vacation of office of a judge on
his being appointed by the President to be the judge of the Supreme Court or of any
other High Court.

subsequently decided to incorporate an express provision for the transfer of judges. According
to this provision, the President was given the power to transfer a judge from one High Court to
another High Court, within the territory of India. The Constituent Assembly while discussing the
revised draft felt that the power to transfer judges should not be completely vested in the
President which would lead to abuse of power and therefore an amendment which required the
President of India to consult the Chief Justice of India before exercising the power of transfer
was adopted by the Assembly.

Thus Article 222(1) which was finally approved by the Assembly provided that the President
may transfer a judge of a High Court within the territory of India after consultation with the
Chief Justice of India.

The use and misuse of the provision-practice in transfer of judges-judges of the High Courts
were transferred to other High Courts either as Chief Justices. During emergency in 1976 sixteen
judges were transferred to different High Courts. One of the judges so transferred challenged the
constitutional validity of his transfer before the High Court of Gujarat and later in 'the Supreme
Court- case-Union of India v. Sankal Chand Sheth

Drafting committee on
transfer-the Drafting
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Committee did not
incorporate any
provision for transfer in the
Draft Constitution. But, Clause
(c) of the' proviso to Article
193(1) of the Draft Constitution
had copied Section 220(2)(c) of
the Government of India
Act and this provided for
vacation of office of a judge on
his being appointed by the
President to be the judge of the
Supreme Court or of any other
High Court

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2. TRANSFER OF JUDGES
 The President may after consultation with the Chief Justice of India transfer a judge from
one High Court to another.
 When a judge has been or is so transferred, he shall during the period he serves, after the
commencement of the Constitution (Fifteenth Amendment) Act, 1963 as a judge of other
High Court be entitled to receive in addition to his salary such compensatory allowance
as may be determined by Parliament by law, and until so determined, such compensatory
allowance as the President may by order fix.

The provision was invoked a number of times and some of the judges of the High Courts were
transferred to other High Courts either as Chief Justices or as puisne judges. Most of such
transfers were made &wing the States reorganization, as many new High Courts were created at
that time. During emergency in 1976 sixteen judges were transferred to different High Courts.
One of the judges so transferred challenged

 the constitutional validity of his transfer before the High Court of Gujarat and later in '
the Supreme Court. The following were the main grounds of challenge.
 The transfer order was passed without the consent of the judge transferred; such consent
must be necessarily implied in Article 222(1) of the Constitution and therefore the
transfer of a judge from one High Court to another High Court without his consent is
unconstitutional. The order was passed without effective consultation with the Chief
Justice of India, "Consultation" in Article 222(1) means 'effective consultation' and since
the pre-condition of Article 222(1) that no transfer can be made without such consultation
was not fulfilled, the transfer order was bad and of no effect.
 The order was passed in breach of the assurance given on behalf of the government of
India, by the then Law Minister: Mr. A. K. Sen in 1963 that the High Court judges would
not be transferred without their consent. Mr. Sheth having accepted. judgeship of Gujarat
High Court in 1969 on the faith of this assurance was bound by the assurance on the
doctrine of promissory estoppel.
 The order of transfer militated against public interest. The power conferred by Article
222(1) was conditioned by the existence and requirement of public interest and since the
impugned order was not shown to have been made in public interest, it was ultra vires

Article 222 of the Constitution makes provision for the transfer of a Judge (including Chief
Justice) from one High Court to any other High Court. The initiation of the proposal for the
transfer of a Judge should be made by the Chief Justice of India whose opinion in this regard is
determinative. Consent of a Judge for his first or subsequent transfer would not be required. All

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transfers are to be made in public interest. for promoting better administration of justice
throughout the country.

 In the formation of his opinion for the transfer of a Judge, other than the Chief Justice,
the Chief Justice of India is expected to take into account the views of the Chief Justice
of the High Court from which the Judge is to be transferred, as also the Chief Justice of
the High Court to which the transfer is to be effected. The Chief Justice of India should
also take into account the views of one or more Supreme Court Judges who are in a
position to offer his/their views which would assist in the process of deciding whether or
not a proposed transfer should take place.
 In the case of transfer of a Chief Justice, only the views of one or more knowledgeable
Supreme Court Judges need to be taken into account.
 The views on the proposed transfer of a Judge or a Chief Justice of a High Court should
be expressed in writing and should be considered by the Chief Justice of India and the
four senior most Judges of the Supreme Court. The personal factors relating to the
concerned Judge, including the Chief Justice, and his response to the proposal, including
his preference of places, should invariably be taken into account by the Chief Justice of
India and the first four puisne Judges of the Supreme Court before arriving at conclusion
on the proposal.
 The proposal for transfer of the Judge, including the Chief Justice should be referred to
the Government of India along with the views of all those consulted in this regard.
After the recommendation of a transfer is received from the Chief Justice of India, the Union
Minister of Law, Justice and Company Affairs would submit the recommendation along with
relevant papers to the Prime Minister who will then advise the President as to the transfer of the
Judge concerned. After the President approves the transfer, the Secretary to the Government of
India in the Department of Justice will inform the Chief Justice of the High Courts and the Chief
Ministers of concerned States and will announce the transfer and issue the necessary notification
in the Gazette of India.

Transfer of Judge to or from Jammu & Kashmir High Court shall be made in accordance with
clause (1) of Article 222 of the Constitution of India read with Article 222 (1A) of the
Constitution (Application to Jammu & Kashmir) order, 1954. Therefore, when it is proposed to
transfer a Judge from or to the Jammu & Kashmir High Court, the Minister of Law and Justice in
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the Central Government will consult the Governor (Chief Minister) of Jammu & Kashmir for his
views before putting up the relevant papers to the Prime Minister for advising the President. In
case there is a difference of opinion, the Union Minister of Law, Justice and Company Affairs
will consult the Chief Justice of India again before putting up the papers to the Prime Minister
for advising the President on the matter of Transfer. On approval of the President, the transfer
will be announced in the usual manner.
The majority of the Court held that there are sufficient bulletin safeguards in Article 222(1)
which would ensure fair play.

They are

 The power to transfer a High Court Judge could be exercised in public interest only and
not by way of punishment.
 There must be full, complete and effective consultation between the President of India
and the Chief Justice of India before an order of transfer under that article was made.

In 'substance and effect, the judge' could not complain of arbitrariness or unfair play if the due
procedure was followed.

The Supreme Court had to consider the validity of another transfer of a High Court judge in the
momentous decision S. P. Gupta v. Union of India. 34 In this case the validity of the transfer of
Mr. K. B. N. Singh from Patna. to Madras High Court was in issue. The following were the
grounds for challenge:

 The transfer was, made without the consent of the judge transferred. (This meant the
majority decision of, the Supreme Court on this point in Sankal . Chand's case 35 had to
be reconsidered).
 There was no full and effective consultation between the Chief Justice of India and the
President in respect of his transfer.
 The transfer was not in public interest, but by way of punishment and was vitiated by
mala fides.

The case was heard by a Constitution Bench consisting of Bhagwati, Gupta, Fazal Ali,
Tulzapurkar, Desai, Pathak and Venkataramiah, JJ. The transfer of Mr. Singh was held to be in
public interest, and not vitiated by mala fides, by the majority of the Court consisting of Gupta,
Tulzapurkar, Venkataramiah and Pathak, JJ. There was unanimity among all judges that the
transfer of judges must be in public interest and not by way of punishment. Prior consent of the
judge transferred was held to be not necessary by the majority of Court. But Bhagwati, J.
dissented.

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2.1 TRANSFER OF JUDGES AND CONSENT OF THE JUDGE

In Sankal Chand's case it was contended that though the word 'consent' was not used in Article
222(1), by necessary implication, that word had to be read into that article. It was also argued
that transfer of a judge from one High Court to another resulted in fresh appointment of the judge
to the other High Court and since a person could not be appointed as a judge without his consent,
the transfer could not be made without his consent. Again, it was contended that the essence of
judicial service was that there was no master-servant relationship between the Judge and the
government. Therefore 'transfer' under Article 222(1) did not have the same color and content as
in other services. Finally, it was argued that non-consensual transfer would provide a potent
weapon in the hands of the executive to punish a judge who did not toe its line and thereby
destroy the independence of the judiciary.

The majority of the Court (consisting of Krishna Iyer, Fazal Ali and Chandrachud, JJ•)
negatived all these contentions. The Court held that it was needless to cut down the width of the
words used in Article 222(1) by making the power of transfer dependent on the consent of the
judge himself. 37 The Court ruled that the transfer of a judge without his consent would not
damage or destroy the provision contained in the Constitution for preserving the independence of
the judiciary. The following reasons were given by the Court.

 If the transfer of a judge is tantamount to his de novo appointment a second time, there
should be consultation with the Chief Justice and the government of the State to which he
is transferred. Article 222(1) does not visualized such a second consultation.
 The Government of India Act 1935 and the Draft Constitution did not provide for the
transfer of judges but only their appointment in any other High Court. Then, why did the
Constitution makers deliberately depart specially to include the provision for transfer of
judges, unless it be that it was meant to vest this additional power in the President?
 Wherever consent of the judge is contemplated, it is specifically stated in the Constitution
(Eg. Article 224-A: it is specifically provided that appointment of retired judges at the
sittings of the High Court can be made only with the previous consent of the judge) and
the omission in Article 222 is a pointer to the non-consensual sense.

But this opinion of the majority was strongly questioned by the minority judgments delivered by
Bhagwati, J. and Untwalia, J. separately. According to Bhagwati, J. though the words "without
his consent" are not to be found in Clause (1) of Article 222(1) the word 'transfer' which is used
is a neutral word which can mean consensual as well as compulsory transfer and if the high and
noble purpose of the Constitution to secure the independence of the judiciary by insulating it
from all form of executive control or interference is to be achieved, the word `transfer' must be

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read in the limited sense of consensual transfer. He gave the following reasons in support of his
view.

 He transfer of a judge from one High Court' to another would ordinarily inflict many
serious personal injuries on him.
 The power of transfer is in fact in the hands of the executive. If Article 222(1) is
interpreted to mean nonconsensual transfer too this power of the executive would become
a dangerous power, because the executive would then have an unbridled charter to inflict
injury on a High Court judge by transferring him from the High Court to which he
originally agreed to be appointed to another High Court if he decides cases against the
government or delivers judgments which do not meet with the approval of the executive.
That would gravely undermine the independence of the judiciary.
 Judges do not form part of an All India Service.
 When a judge is transferred from one High Court to another High Court, he is appointed
to the High Court to which he, is transferred and it is only when he assumes charge of the
office of a judge of that High Court by making oath or affirmation before the Governor of
the State, that he ceases to be the judge of the High Court from where he is transferred.
No appointment can be made without the consent of the judge.

2.2 Landmark Judgments

Sp gupta vs union of india

Several writ petitions were filed in the various High Courts regarding the appointment of High
Court Judges as well as the Supreme Court judges in the form of public interest litigation. These
petitions were transferred to the Supreme Court using suo moto cognizance. The main issue was
to decide whose opinion in the collegium should be given primary importance while appointing
the judges. The majority opinion was that “the opinions of Chief Justice of India and opinions of
the Chief Justice of High Court were merely consultative and that power of appointment solely
resides in the Central Government ”. 

The meaning of the word consultation was also discussed in the case. The word consultation
mentioned in Article 124 and Article 217 in relation to all consultees and final decision in the
matter was left to the Central executive. The majority took an extremely literal and positivistic
view of Article 217.

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The central government even after this judgment followed the old practice and no judge was
appointed without the name being cleared by the Chief Justice of India.

Supreme court advocates on record association vs union of India

This case was a landmark judgment which constituted a bench of nine judges. This case is
popularly known as the Second Judges case. The main question that was decided was whether
the independence of the judiciary is the basic feature of the constitution. The Supreme Court
Advocates-on-Record Association and Senior Advocates filed writ petitions before the Supreme
Court which questioned the constitutionality of the 99th Amendment and the NJAC Act. The
petitions accused that the NJAC violated the basic structure of the Constitution by compromising
the judiciary’s independence. The majority verdict the Chief Justice has the power to appoint and
transfer Judges. The Chief Justice of India needs to consult only two senior-most judges during
the time of appointment.

The first major issue which was in question was the meaning of the term “consultation” which is
present in Article 124. The majority came to a conclusion that it means an “integrated,
participatory and consultative process”. This leads to complete discharge of constitutional
obligations on the part of constitutional functionaries. Various methods have been used by the
Judges in the case to establish that “consultation” means occurrence or primacy notably among
which are” The Chief Justice of India as a ‘Pater Families’ would be competent enough and has
the best qualities to judge and differentiating the Indian constitution with other constitutions, our
constitution does not vest absolute discretion in the hands of the executive. Hence, the Chief
Justice of India cannot be considered as an inferior position.

2.3 Reason for transferring

Considering the fact related to the transfer of judges one thing comes under importance, for
which reason, this attempt has been taken? It has been observed that to implement a fair and
effective justice all over India, the decision of transfer of judges has been taken based on the
public concern. However, before the allocation of transfer orders, a meeting has been organized,
under which either “chief justice” or other collegium’s members rise the topic of transfer of a
specific judge. Based on this transfer proposal, voting has been performed which determines at
which court that particular judge would be transferred.

India is described judicially to be a ‘Quasi Federation’ or ‘Cooperative Federation’, etc. It is one

of the peculiar features of the Indian Constitution that it enables the transfer of high court judges

20 | P a g e
by Article 222. It is a legacy of the colonial administrative set-up. It does not provide for the
transfer of chief ministers and their cabinet members. Such a provision is not there in the united
sates.

There are no clear parameters detailing the circumstances which warrant transfer of high court
judges. Prior to the Second Judges Case, vary rarely, high court judges were transferred, when
the power of transfer vested exclusively with the Union of India, which of course was obliged to
‘consult’ the Chief Justice of India. The only bad experience was transfer of 16 judges during the
Emergency. Post the Second Judges Case, when the power is exercised by collegium, transfers
became more frequent. There was widespread protest about the transfer of the 16 high court
judges during the Emergency. The allegation was that the government of the day was attempting
to destroy the independence of the judiciary. I do not know what is the qualitative difference
between the transfer of a high court judge. on the recommendation of the collegium.

Maybe, in some cases, there are complaints regarding integrity of a particular judge. Depending
upon the gravity of the complaint and the availability of material in support of such allegation,
transfer might be justified. But in such cases, I believe, the basic principle of natural justice be
complied and the judge concerned must be given an opportunity to explain his case and prove the
allegation baseless. The constitutional position declared on several occasions by the Supreme
Court is that every action of the State must be informed with reason and that the decision-making
process be rational. I believe, that the decision-making process of the judiciary cannot be an
exception to the general rule. Somebody in the constitutional system is required to know and
examine whether the decision-making process and the decision reached are rational. In the
context of the transfer of high court judges, if no reasons recorded, there would be no
opportunity to examine the rationality of such decision.

Neither the Parliament nor the government — or for that matter even a future collegium — will
be able to ascertain why a high court judge was transferred at a particular point of time. In such a
situation, speculation and rumours gain currency, damaging the credibility of the institution.

There can be various irregularities in the conduct of the high court judges. In some cases, it can
be lack of integrity and other cases it can be lack of efficiency or simply laziness, etc. The law is
absolutely silent as to how to deal with such cases. The text of the Constitution provides only
two modes of dealing with the high court judges; impeachment or transfer. Nothing prevents the
Parliament from making laws to deal with different categories of unwholesomeness in the
conduct of high court judges by creating an appropriate disciplinary regime. So long as such a
regime is not created, it is free for both the collegium and the government to deal with high court
judges as they please.

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Even in the case where the collegium recommends the transfer of a judge, it is not unknown that
the government simply does not act on the recommendation, when it does not want to. It is a
matter of record. What is not a matter of record is when the suggestion comes from the
government, obviously, the communication is only to the Chief Justice and I ‘suspect’, more
often than not, it is oral and not, it is oral and not in writing. There is no way to ascertain exactly
what the reasons are, which triggered such a suggestion. I believe that in constitutional theory,
the elected government is entitled to make such a suggestion, provided they have tenable
material, and share it with the collegium.

3 collegium

 It is the system of appointment and transfer of judges that has evolved through

judgments of the supreme court, and not by an Act of parliament or by a provision
of the Constitution.
 Evolution of the System:
o First Judges Case (1981):
 It declared that the “primacy” of the cji (chief justice of
India) recommendation on judicial appointments and
transfers can be refused for “cogent reasons.”
 The ruling gave the Executive primacy over the Judiciary
in judicial appointments for the next 12 years.
o Second Judges Case (1993):
 SC introduced the Collegium system, holding that
“consultation” really meant “concurrence”.
 It added that it was not the CJI’s individual opinion, but
an institutional opinion formed in consultation with the
two senior-most judges in the SC.
o Third Judges Case (1998):
 SC on the President's reference (Article 143) expanded
the Collegium to a five-member body, comprising the CJI
and four of his senior-most colleagues.

3.1Who Heads the Collegium System?

 The SC collegium is headed by the CJI (Chief Justice of India) and comprises
four other senior most judges of the court.

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  A HC collegium is led by its Chief Justice and four other senior most judges of that
court.
o Names recommended for appointment by a HC collegium reaches
the government only after approval by the CJI and the SC
collegium.
 Judges of the higher judiciary are appointed only through the collegium system and
the government has a role only after names have been decided by the collegium.

3.2What are the Procedures for Judicial Appointments?

 For CJI:
o The President of India appoints the CJI and the other SC judges.
o As far as the CJI is concerned, the outgoing CJI recommends his
successor.
o In practice, it has been strictly by seniority ever since the supersession
controversy of the 1970s.
 For SC Judges:
o For other judges of the SC, the proposal is initiated by the CJI.
o The CJI consults the rest of the Collegium members, as well as the
senior-most judge of the court hailing from the High Court to which
the recommended person belongs.
o The consultees must record their opinions in writing and it should form
part of the file.
o The Collegium sends the recommendation to the Law Minister, who
forwards it to the Prime Minister to advise the President.
 For Chief Justice of High Courts:
o The Chief Justice of the High Court is appointed as per the policy of
having Chief Justices from outside the respective States.
o The Collegium takes the call on the elevation.
o High Court judges are recommended by a Collegium comprising the
CJI and two senior-most judges.
o The proposal, however, is initiated by the outgoing Chief Justice of the
High Court concerned in consultation with two senior-most colleagues.
o The recommendation is sent to the Chief Minister, who advises the
Governor to send the proposal to the Union Law Minister.

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3.3 What is Critical about the Collegium System?

 Opaqueness and a lack of transparency.

 Scope for nepotism.
 Embroilment in public controversies.

 Overlooks several talented junior judges and advocates.

3.4What were Attempts to reform the Appointment System?

 The attempt made to replace it by a ‘ National Judicial Appointments

Commission’ (through Ninety-ninth Amendment Act, 2014) was struck down by
the court in 2015 on the ground that it posed a threat to the independence of the
judiciary.

4 Birth of the Collegium

Three judges cases

 1" judges case the apex court took a pro executive stand and affirmed the existingconstitutional
provisions by majority. Who has the final voice in the appointment of judges of Supreme Court
and high court? Answering this issue the court said that on a plain reading of clause (2) of article
124, it is the President, which in effect and substance means the Central Government, who is
empowered by the Constitution to appoint judges of the apex court. So also, article 217(1) vests
the power of appointment of judges of High court in the Central Government, but such power is
exercisable only after consultation with the Chief Justice of the high court, CJI and the Governor
of the State. It is clear on a plain reading of these two articles that the CJI, Chief Justice of high
court and such other judges of high court and of the Supreme Court are merely constitutional
functionaries having a consultative role and the power of appointment resides solely and
exclusively in the Central Government.

 What constitute consultation within the meaning of clause (2) of Article 124 and clause (1) of
Article 217? The court said that it stands concluded by the decision of this court in Sankalchand
Seth case. (Where it is held the consultation does not mean concurrence). The apex court held (4-
3) that in the appointment of a judge of the Supreme Court or the High Court, the word
"consultation" in Article 124(2) and in Article 217(1) of the Constitution does not mean
"concurrence". In the event of a disagreement, the "ultimate power" would rest with the Union

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 Government and not the CJI, the SC ruled. The First Judges Case, therefore, was an instance
where the apex court acted against its own interests.

2nd judges case SC advocate on record association v union of India, 1993, known as 2nd judges case, A
nine Judge Bench was constituted to examine the question and to review 1" judges case-following are the
main points.

 The proposal for appointment is initiated, in case of Supreme Court must be by the CJI and in the
case of a high court by the Chief Justice of that high court. ii. If there is conflicting opinions
among the constitutional functionaries, the opinion of the judiciary 'symbolized by the view of the
CJI', has primacy iii. No appointment of any judge to the Supreme Court or any High court can be
made, unless it is in conformity with the opinion of the CJI. iv. Appointment to the office of the
CJI should be of the senior most judge of the Supreme Court considered fit to hold the office.

 In this case the court evolved new system called 'collegium' for appointment of judges of higher
judiciary. In matters relating to appointments in the apex court, the opinion given by the CJI in
the consultative process has to be formed taking into account the views of the two-senior most
judges of the Supreme Court. This ensures that the opinion of the CJI is not merely his individual
opinion, but an opinion form collectively by a body of men at the apex level in the judiciary.

In matters relating to appointments in the high courts, the CJI is expected to take in to account the views
of his colleagues in the Supreme Court who are likely to be conversant with affairs of the concerned high
courts. The CJI may also ascertain the views of one ormore senior most judges of the high court whose
opinion, according to the CJI is likely to be significant in the formation of his opinion. The opinion of the
Chief Justice of the high court must be formed after ascertaining the views of at least two senior most
judges of the high court.

 Conclusion the two most-senior judges after the CJI in the SC when it comes to appointing SC
judges; the two most senior judges of the respective HC when it comes to appointing judges to
that particular HC.

 3rd judges case- re Special Reference (1998)- presidential reference-was mere a dictum of the
verdict in Second Judge's Case except that it has increased the size of collegium by introducing
two other senior most Supreme Court judges and made it more participatory consultative process.
After this case the collegium consists of CJI and four senior most judges of the Supreme Court.

 NJAC and judicial appointments-In 2015 99th constitutional amendment regarding National
Judicial Appointment Commission (NJAC) was declared unconstitutional.

4.1Transfer Procedure – High Curt Judges

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The transfer of the high court judges has been enabled by the “Quasi Federation” and
“Cooperative federation”, in the guidance of “Article 222’. However, no particular reasons
behind the transfer of specific High court judges have been determined. It has been observed that
previously when the transfer procedure was controlled by the “Union of India”, showed a lower
rate of transfer of high court judges. Nevertheless, the high court judges have been experiencing
frequent transfer issues, after the involvement of “Judicial Collegium”. 
Based on these issues, an example is present, where a total number of 16 high court judges were
transferred in on an emergency basis, by which the liberty of judiciary was diminished by the
Indian government. In addition, the transfer has been attempted if any particular judge shows
disintegration in responsibilities. However, it is necessary to show effective evidence based on
the severity of the complaints, and after that transfer would be justified. On the other hand, many
judges have thought that, before making any final transfer decision, an opportunity of explaining
the concern from the standpoint of the judge should have been given to prove the complaint
groundless.

SUGGESTION AND CONCLUSION

Judges are the most important part of the judiciary. It is important to ensure that the Judges are
competent enough to handle various issues that arise every day. The appointment of Judges must
be done properly and a lot of effort must be carried out while selecting the Judges. The Judges
should not be transferred unnecessarily and the transfer must be done only when there is a proper
reason. Judges should not be transferred for personal and political reasons. Thus the government
and the judiciary must consider the appointment of Judges as a very important process and a lot
of care must be taken. The constitutional provision on transfer of judges has a direct and
proximate connection with the independence of the judiciary. This provision like many other
constitutional provision can be made use of for achieving many useful purposes as well as evil
purposes. During the first quarter century of the working of the Constitution, this was never
abused. But in recent years, some attempts were made and are being made to misuse this
provision. Its abuse will have many dangerous effects on the judiciary and its independence. If
the judiciary loses its independence and becomes subservient, the net result would be that the

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Constitution will lose its prominence. Justice Khanna has aptly put it like this Once the
independence of the judiciary is undermined and the seats of Justice came to be occupied by men
with `pliable conscience' and subservient to the political wing of the State, the first casuality
would necessarily be the supremacy of the Constitution, for it would be open to every branch of
the State to ride roughshod over the provisions of the Constitution.

REFERENCES

 www.sociocosmo.com
 www.oxfordnotes.com
 https://www.jagranjosh.com
 https://www.hindustantimes.com
 http://www.mha.nic.in/pdfs/STTSPPR
 http://www.idsa.in/publications/stratcomments/NiharNayak300107.htm
 http://inpad.org/res104.html
 http://www.aitpn.org/Issues/II-09-06-Forest.pdf
 http://www.indiatogether.org/2007/nov/hrt-randrpol.htm
 http://www.mha.nic.in/pdfs/STTSPPR
 http://hrm.iimb.ernet.in/cpp/pdf
 http://www.jstor.org/stable/4381533
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 http://www.rdiland.org/PDF/PDF_Reports/RDI_112.pdf
 http://www.jstor.org/stable/4397623
 http://www.arts.monash.edu/mai/asaa/gaurangsahay.pdf

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