Judicial transfers: Help or hindrance?

Syllabus: Judiciary

Source: DH

Context: Two Bar Associations recently protested the Supreme Court collegium’s transfer recommendations involving judges from the Karnataka and Delhi High Courts.

• The protests reignited debates on judicial independence, executive interference, and the lack of a structured transfer policy.

About Judicial transfers: Help or hindrance?

• What are Judicial Transfers?

• Judicial transfer refers to moving a judge from one High Court to another based on administrative needs or public interest.

• Constitutional Provision:

• Article 222(1) of the Constitution empowers the President to transfer a judge in consultation with the Chief Justice of India (CJI).

• Procedure of Judicial Transfers:

• Initiation: Proposed by the CJI, considering judicial performance and administrative grounds. Consultation: Mandatory with CJs of both High Courts and senior SC judges familiar with the judge’s work. Collegium Recommendation: For judges, it includes the CJI and two senior-most SC judges; for CJs, the full 5-member collegium is involved. Executive Approval: Law Ministry processes the file to PM to President grants final approval. Notification: Department of Justice issues transfer orders via Gazette.

• Initiation: Proposed by the CJI, considering judicial performance and administrative grounds.

• Consultation: Mandatory with CJs of both High Courts and senior SC judges familiar with the judge’s work.

• Collegium Recommendation: For judges, it includes the CJI and two senior-most SC judges; for CJs, the full 5-member collegium is involved.

• Executive Approval: Law Ministry processes the file to PM to President grants final approval.

• Notification: Department of Justice issues transfer orders via Gazette.

Need for Judicial Transfers:

• Prevent Local Influence: Reduces chances of bias from local networks or pressures.

• Promote Judicial Neutrality: Helps in maintaining independence by avoiding prolonged stay in one High Court.

• Strengthen Judicial Administration: Enables redistribution of judicial expertise across High Courts.

• Fill Urgent Vacancies: Used (though controversially) to address temporary judge shortages.

• Encourage Diversity: Intended to promote inclusivity and regional representation.

Issues Surrounding Judicial Transfers:

• Executive Interference Risk: E.g., Justice Muralidhar’s midnight transfer raised concerns of retaliation for “inconvenient” judgments.

• Opacity in Collegium Decisions: Supreme Court Observer (2021) found that 59% of transfer orders had no reasons given.

• Disruption to Judicial Continuity: Part-heard cases suffer delays; judges face local law and language barriers.

• Impact on Seniority: Transfers can disrupt promotion prospects as seniority is calculated inter se within a court.

• No Solution to Vacancies: Shifting judges only relocates the problem and all HCs except Sikkim and Meghalaya are under strength.

• Tokenism in Diversity Push: As of 2023, only 4% SC/ST judges and 14% women judges in HCs — transfers don’t solve root issues.

Way Ahead:

• Codify a Transparent Transfer Policy: With clear, objective criteria and stated reasons for public trust.

• Ensure Routine Transfers: Transfers should be non-arbitrary and planned to avoid speculation or bias.

• Use Retired Judges & Fast-Track Appointments: Better approach to deal with judicial vacancies than transfers.

• Enhance Collegium Accountability: Publishing detailed justifications can restore faith in the process.

• Diversity at Entry Level: Focus on recruitment reforms, reservations, and mentorship for underrepresented groups.

Conclusion:

Judicial transfers, when routine and transparent, can enhance administrative efficiency. However, arbitrary and opaque transfers risk judicial independence and public confidence. To preserve the judiciary’s credibility, systemic reforms are more effective than reactive relocations.

• “Constitutionally guaranteed judicial independence is a prerequisite of democracy.” Comment. (UPSC-2023)