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Transfer and Removal of Judges

Print this 0. TABLE OF CASES 1. C Ravichandran Iyer v. Justice A M Bhattacharjee, (1995) 5 SCC 457. 2. In Re Presidential Reference, AIR 1999 SC 11. 3. K Ashok Reddy v. Union of India, AIR 1994 SC 1207. 4. K Veeraswami v. Union of India, (1991) 3 SCC 655. 5. Lily Thomas v. Speaker, Lok Sabha, (1993) 4 SCC 234. 6. S P Gupta v. Union of India, AIR 1982 SC 149. 7. Sarojini Ramaswami v. Union of India, AIR 1992 SC 2219. 8. Sub-Committee on Judicial Accountability v. Union of India, AIR 1992 SC 320. 9. Supreme Court Advocates on Record Association v. Union of India, (1993) 4 SCC 441. 10. Union of India v. S H Sheth, (1977) 4 SCC 193. 1. INTRODUCTION The role of the judiciary in any country especially in a liberal democracy like India is of paramount importance. The judiciary is the final instrument of the legal order for maintenance of rights and duties of the ordinary population. Of the courts which comprise the judicial hierarchy, the higher judiciary which is there in the High Courts and the Supreme Court play a vital role not only because they are at the acme of the judicial hierarchy but also because of the wide and comprehensive jurisdiction which they possess. The judiciary is the custodian of the constitutional principles, which are essential for the maintenance of the rule of law. It is the vehicle of protection of a set of values, which are integral part of our social and political philosophy. Judges are the most visible actors in the administration of justice. Therefore, any realistic analysis of the administration of justice in the courts must also take in to account the totality of judges behaviour and their administrative roles. They may appear to be only minor aspects of the administration of justice but they are not trivial. [1] Therefore, the issue of transfer and removal of judges is very important in our sociopolitical milieu. The constitution of India (Part V and Chapter IV) outlines the provisions about the establishment of the Supreme Court, as well as appointment and removal of the Judges by the President. Article 222 of the Constitution provides for the process of transfer of judges by the President of India in consultation with the Chief Justice of India. [2] The transfer Policy of the High Court judges was initiated, like family planning, during the emergency of June 1975. But unlike family planning it has grown in popularity with the Executive. This provisions, has been lauded as having much wisdom and merit, and it is as eloquent in its silence, as what it does.[3] There is much controversy in several areas with regard to this provision, the matter

of consensual and punitive transfers, and the consultation process are particularly interesting. The Supreme Court has also looked at the questions of transfer and made several pronouncements in this regard which are quite interesting. In this context, the process of removal of judges also requires an indepth study. Article 124 of our Constitution provides that a judge of the higher judiciary cannot be removed except by an order of the President passed after an address to both the houses of the Parliament, supported by a majority of the total membership of that house and by a majority of not less than two- thirds of each of the houses present and voting, has been presented to the President, in the same session for such removal on proved grounds of misbehaviour and incapacity. This has been done in order to grant a security of tenure to the higher judiciary and stop the executive from meddling into judicial affairs. Such a mechanism will also allow the judges autonomy in their judicial decisions. However, both the aspects have come in for criticism from various quarters as cases of judicial misconduct and the corruption within the judiciary have increased. The project has been undertaken with a view to study and outline the intricacies of the system and suggest changes within it in order to remove the defects and make it more efficient. In order to achieve these stated objectives, a comparative analysis with the provisions in other democratic countries has also been done. 2. RESEARCH METHODLOGY AIMS & OBJECTIVES: The project is an attempt to study the various provisions relating to the transfer and removal of the judges belonging to the higher judiciary. As a part of this, not only the constitutional provisions, but the views of the members of the Bar as well as legal academia as well as reports of the Law Commission and the Constitutional Review Commission have been incorporated in the project. The provisions relating to the transfer and removal of judges in other jurisdictions has been outlined and compared with the same in the Indian system. SCOPE & LIMITATIONS: The scope of the project is not merely to study the area and the issues evolved therein from a constitutional point of view but as means and ways of improving the judicial system and the efficiency of the legal community. The limitation of the work lies in the fact that there is a plurality of views in this regard and it is a difficult proposition to choose between the various perspectives. Also, there is a paucity of research material with respect to the work done by the Bar Council of India in this area. NATURE OF PROJECT: The project is descriptive to the extent that it has outlined the various constitutional provisions relating to the area under study. It has also outlined the position stated in various judicial pronouncements. It is also analytical as the researcher has tried to compare the various viewpoints regarding the area under the study and has tried to give his own views in this regard. The researcher has also analysed the efficacy of the present system as outlined under the Constitution. An attempt has also been made to draw a comparative analysis of the nature and extent of analogous provisions in various jurisdictions. RESEARCH QUESTIONS: The following research questions have been formulated by the researcher during the course of the project:

1. What are the various provisions relating to the transfer and removal of judges? 2. How have these provisions given effect to by the various judicial pronouncements? 3. Have the procedures relating to the transfer and removal of judiciary been efficient and workable in preserving the independence of the judiciary? 4. What is the procedure relating to the transfer and removal of judges in other countries of the world? 5. What suggestions can be made in order to further strengthen the system relating to the transfer and removal of judges and do these provisions guarantee the independence of the judiciary? SOURCES OF DATA: Secondary sources have been mainly referred to for the purposes pf writing this paper. MODE OF CITATION: A uniform mode of citation has been followed throughout this rsearch paper. 3. TRANSFER OF JUDGES: WHERE DOES THE REAL POWER LIE? The Constitution provides for transfer of a High Court judge after consultation with the chief Justice of India. Article 222 of the Constitution empowers the President of India, after consultation with the Chief Justice of India, to transfer a judge from one High Court to another High Court. However, in the fifties, this power was rarely resorted to. The suggestion that at least one-third of the High Court judges should be persons drawn from outside the State came from the States Reorganisation Commission and was endorsed by successive Law Commissions and the Administrative Reforms Commission.[4] Till the year 1976, no constitutional expert realised the seriousness of the provision, particularly after the Law Ministers assurance in 1963.[5] But things changed after the advent of emergency. Many High Courts gave adverse orders against the Government of India in habeas corpus petitions protecting the fundamental rights of the citizens. As a result, transfer orders of 14 High Court judges were passed without their consent and forced the people to have a re-look at the provisions in Article 222 and attribute meaning to the provision. In Union of India v. S H Seth,[6] the validity of a Presidential order transferring a judge of the Gujarat High Court was challenged on the grounds that it was done without the consent of the concerned Judge and without consultation of the Chief Justice of India. The order was also challenged on the grounds that it was passed in breach of the assurance given by the then law minister A K Sen in 1963 that High Court judges would not be transferred without their consent. The Supreme Court held that the consent of the judge concerned was not necessary. However, Justice Bhagwati and Justice Untwalia, in their minority judgments held that interpreted Article 222 (1) as embodying consent of the judge proposed to be transferred as a necessary condition for the exercise of the Presidential power under the Article. However, the Court in its unanimous opinion laid stress upon the independence of the judiciary being a vital ingredient of our legal system and that the threat of transfer at the whims and caprices of the executive constitutes a major threat upon that independence. Therefore, transfer of judges can only be made in public interest. Any transfer which is not in public interest can be challenged in the

courts as ultra vires or without jurisdiction. Also, no transfer can be made without consultation with the Chief Justice of India. However, such consultation does not mean the concurrence. The next significant case which dealt with the issue of transfer of judges is S P Gupta v. Union of India[7] (popularly referred to as the 1st Judges Case). Herein, the transfer of Justice K B N Singh from Patna to the Madras High Court was sought to be challenged on the following grounds: 1. The transfer was made without the consent of the judge transferred. This meant that the majority decision on Sankal Chand case would have to be reconsidered. 2. There was no effective consultation between the President and The CJI with respect to the transfer. 3. The transfer was not justified by being in public interest; infact was by way of punishment and was vitiated by malafides. In this case, the Supreme Court while upholding the position in the Sankalchand Seth case regarding the consent of the judges sought to be transferred did bring in some other safeguards with regard to the transfer of judges. It held that judge could not be transferred by way of punishment and that the government must consider the personal difficulties of judges before issuing their transfer orders. It also reiterated the earlier position that the transfer of judges can only be carried out in the case of public interest. The Supreme Court also stated that the consultation as stipulated under Article 222 of the Constitution was mandatory.[8] However, the view taken by the Court was that the opinion of the Chief Justice of India did not have primacy over the opinion of the executive and that in the event of difference of opinion it was for the central government to decide whose opinion would be accepted. The Constitutional provisions in Article 222 again attracted attention in the year 1994 when transfers on a big scale were effected in 1994 to give effect to the policy of the Government of India, endorsed in the 1st Judges Case regarding the need of having 1/3rd judges in every High Court from outside. To give effect to such transfers, a Peers Committee was formed by the then CJI, M N Venkatachaliah and transfers of a good number of sitting and newly appointed judges have taken place. As these transfers were widely criticised on various counts, these were not ordered thereafter. [9] However, these developments necessitated a re-look at the questions relating to transfer of judges. The stand taken by the Court in the 1st Judges Case was overruled in the case of Supreme Court Advocates on Record Association v. Union of India.[10] Regarding the transfer of High Court judges and Chief Justices, it was held that the opinion of the Chief Justice of India should not have mere primacy, but would be determinative and that the consent of the transferred Judges/Chief Justice of high Courts was not required for transferring them from one High Court to another. It was also held that any transfer made on the recommendation of the Chief Justice of India was not to be deemed to be punitive, and such transfer was not justiciable on any ground. Thus, in a nutshell the Court in the 2nd Judges Case has completely sidelined the executive by going to the other extreme and conferring primacy on CJI in

appointment provided he consulted two other judges and on transfer the Chief Justice of India has more than primacy as his view in this regard is determinative.[11] This view was endorsed in the judgment of the Supreme Court in K Ashok Reddy v. Union of India.[12] Herein, it was stated that a decision made by the collective exercise of several Judges at the apex level on objective criterion is an inbuilt check against arbitrariness and bias, indicating absence of need for judicial review on those grounds. This question again necessitated a clarification by the Supreme Court in the Presidential Reference in 1998.[13] These questions were raised as doubts had arisen about the interpretation of the law laid down by the Supreme Court on the scope and modalities of the consultative process in the transfer of judges from one High Court to another as suggested by the Supreme Court in the 2 nd Judges case. A nine-member bench of the Supreme Court held that the CJI must make a recommendation to transfer a Chief Justice of a High Court or a judge of a High Court in consultation with the four senior most puisne judges of the Supreme Court. The Bench further stated that the Chief Justice of India is not entitled to act in his individual capacity without consultation. The Bench also further stated that the transfer of puisne judges is judicially reviewable only to the extent that the recommendations made by the Chief Justice of India in this behalf has not been made in consultation with the four senior most judges of the Supreme Court.[14] Thus, the judgment in the 3rd Judges case builds on the judgment in the 2nd Judges case and proceeds to spell out its implication, prescribing even the minutes of the procedure. After going through the above cases, the following questions need to be considered: Whether it is necessary to obtain the consent of the judge sought to be transferred? What should be the nature and quantum of the consultation with the CJI regarding such transfers? Whether Article 222 should be interpreted as containing Policy transfers also? If so, with what additional safeguards? Can transfers be made as a mode of punishment of errant judges? Do the transfers have to be made in public interest? 3.1 Consent of Judges: This question was first debated in the case of Union of India v. S H Sheth[15]. In that case, it was contended that even though the word consent hadnt been used in article 222, it had to be read into the provision by necessary implication. It was asserted that since the transfer of a judge from one court to another virtually meant a fresh appointment, and since no appointment was made without the consent of the judge concerned, similarly in the case of transfers the consent of the judge concerned must be sought. It is also important to keep in mind that the judiciary is not in the nature of an All India Service, and transfers cannot be made arbitrarily and the whim of the executive. Despite all these contentions, the majority did not import the element of consent in Article 222 (I). However, Justice Bhagwati and Justice Untwalia interpreted Article 222 (i) as embodying consent of the Judge proposed to be transferred as a necessary condition for the exercise of the Presidential power under Article 222. the majority

relied on a literal interpretation of Article 222 and thus did not import consent into Article 222. In the Judges case too, all the Judges except Justice Bhagwati were not prepared to show any departure from the majority view in Sheths case so far as the importation of consent in Article 222 (i) was concerned. Justice Fazl Ali opined that by reading a requirement of consent in Article 222 the power of the President can be defeated or stalled by a simple act of the Judge in refusing to give his consent to the transfer. Article 222 was held by His Lordship as having been expressed in clear and , explicit, plain and unambiguous language admitting of no vagueness or ambiguity. He further added that reading the word consent into Article 222 would amount to imposing unnecessary restraints and conditions in the Article which are not there at all. Venkataramiah J., held that such a construction would virtually grant on an unwilling judge an immunity to act against the exercise of power by the President under Article 222 even though public interest may demand the transfer o f the judge. Even subsequently, in the 2nd and the 3rd Judges case, the word consent has not been interpreted into Article 222. It is the belief of many learned scholars that withholding such consent from the judge sought to be transferred weakens the independence of the judiciary which is a guiding principle of our democratic polity. It is believed by many the executive may misuse its powers like it did in it heydays during the Emergency and transfer the higher judiciary like ordinary civil servants. Many fear that independent judges who do not pass favourable orders in favour of the government or worse still, pass adverse orders would be punished by the executive. However, it is the honest belief of the researcher that several other safeguards have been built into the system by the Supreme Court in the 2 nd & the 3rd Judges case which protects the judiciary. Firstly, transfers can only be made in public interest and secondly, even though the word consent has not been used, but the concurrence of the Chief Justice of India and the collegium has been made a prerequisite before transferring any judge. It would be reasonably expected that the senior most judges would protect the interests of their fellow judges. 3.2 Consultation under Article 222: In the Sankal Chand Case[16], the Court cast an absolute obligation on the President to consult the CJI , before any order of transfer can be given. The Court held that it was in the nature of a condition precedent. According to the court, the consultation should be full and effective and not just formal or unproductive. In this process the president must make available all the relevant data, on the basis of which the CJI can render his advice to the President. This position was later re-affirmed in the 1st Judges case wherein, it was held that the word consultation under Article 222 means that the advice of the CJI needs to be taken before any transfer order is taken and it does not mean that the power is taken away form the hands of the executive and placed with the judiciary. However, this position was radically altered in the 2nd & the 3rd Judges case wherein, it was held that the advice of the collegium of the senior most judges would have primacy over the opinion of the President. Thus, the word consultation has been sought to be meant as concurrence.

3.3 Transfers in Public Interest: In the Sankal Chand case,[17] the Supreme Court held that transfers could only be made for the promotion of public interest and not by way of punishment. It was also held that neither the President, nor the CJI has the power to punish a judge for misconduct. This can be done, only by the process of impeachment, the procedure for which is provided in article 124 (4). However, by subjecting judicial removals, to the legislative process, it has become very cumbersome, and an impeachment is very difficult to fall through, simply because it is difficult to get the requisite majority in the legislature. Thus often enough, transfers have been resorted to as a punitive measure According to Tulzapurkar J., in the same case, instances of transfers in public interest include, transfer of a judge for remedying the unsatisfactory working conditions obtaining in a High Court for reasons beyond the control of the Judge, or there may be a case where the particular judge because of his nature and temperament does nor get along with the other judges or the Chief Justice of the particular court. Even in the subsequent judgments in the 2nd and the 3rd Judges case, it has been asserted that transfers cannot be made other than in the better administration of justice in the country. However, with the proposal to have one third of judges of a High Court from outside the state in order to maintain the impartiality and the fact that the policy transfers have not been disallowed in the 2 nd & the 3rd Judges case, policy transfers have been allowed. It is reasonable to assume that the CJI will recommend a transfer only for better administration of justice in the country, or at the request of the concerned judge. However, as has been seen in the recent episode involving the judges of the High Court of Karnataka and Punjab & Haryana being transferred, it means that although the decision in the 2nd Judges case is sound but the ground reality is that it is being abused to a large extent. Care should be taken to ensure that there is difference between transfer for the purposes of punishment and transfer in general. However, very recently, the 67th Constitutional Amendment Bill was tabled before the parliament, with its purpose being to set up a National Judicial Commission for the appointment of Supreme Court and High Court judges and for the transfer of High Court judges, so as to obviate criticisms of arbitrariness on the part of the Executive in the matter of transfers. In connection with the Article 222, the bill provided that the transfer has to be made on the recommendation of the National Judicial Commission, and if such recommendation is not acceptable, the reasons have to be recorded in writing.[18] However the shortcoming of this provision is that there is no such safeguard as is provided with respect to the appointment of judges, whereby, in case the recommendation is unacceptable the President cannot appoint a judge, who has not been recommended by the National Judicial Commission. Does this mean that all transfers of the High Court judges can be made while not accepting the recommendations of the Commission? However the bill was not enacted, although it was a welcome measure. The Chief Justices Council of 1990 decided that instead of the 67th Amendment Bill, the recommendations made by the Chief Justices Conference should be carried to effect. Their decision regarding the transfer of judges was that the transfer of judges from the High Court should be made with the concurrence with Chief Justice

and not merely in consultation with him.[19] If such a transfer were made with the concurrence of the CJI it would not be considered punitive. Therefore, as a result of the various judgments, the position regarding the transfer of judges is as follows:

1.

1. The proposal for the transfer of a High Court judge must be invariably be made by the Chief Justice of India. 2. 2. The opinion of the collegium comprising the CJI and five senior most judges of the Supreme Court is determinative in the matter of transfer of High Court judges. 3. 3. Consent of the transferred judge is not required for either the first or any subsequent transfer from one High Court to another. 4. 4. Any transfer made on the basis of the recommendation made by the collegium of judges is not judicially reviewable on the grounds of bias.