Do you think that if a Judge of one High Court is transferred to another High Court it will adversely affect the independence of the judiciary? Give reasons.

Question: Do you think that if a Judge of one High Court is transferred to another High Court it will adversely affect the independence of the judiciary? Give reasons. [BJS 1980]

Find the answer to the mains question only on Legal Bites. [Do you think that if a Judge of one High Court is transferred to another High Court it will adversely affect the independence of the judiciary? Give reasons.]

Answer

In the case of Union of India v. Sankalchand Himatlal Sheth (AIR 1977 SC 2328), The Supreme Court dealt with the same issue as in the present case where a judge of one High Court is transferred to another High Court, whether such transfer will adversely affect the independence of the judiciary.

The facts say that in the exercise of the powers conferred by Clause (1) of Article 222 of the Constitution of India, the President after consultation with the Chief Justice of India, Justice Sheth (Respondent), Judge of was transferred from the High Court of Gujarat to Judge of the High Court of Andhra Pradesh with effect from the date he assumes charge of his office. Respondent complied with the order of transfer and assumed charge of his office as a Judge of the Andhra Pradesh High Court but before doing so, he filed a writ petition, in the Gujarat High Court challenging the constitutional validity of the notification on the two essential grounds:

(i) The order was passed without his consent: 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;

(ii) The order was passed without effective consultation with the Chief Justice of India. ‘Consultation’ in Article 222(1) means “effective consultation” and since the precondition of Article 222(1) that no transfer can be made without such consultation was not fulfilled, the order was bad and of no effect.

However, the Supreme Court ruled that the President had the power to transfer judges with neither their consent nor the ‘concurrence’ of the Chief Justice of India (CJI). While interpreting the word “consultation,” the Supreme Court ruled that the term can never mean “concurrence”. Hence, the CJI’s opinion, the court ruled, was not binding on the executive. But nonetheless, the executive could depart from his opinion only in exceptional circumstances, and, in such cases, its decision could well be subject to the rigors of judicial review. This position was also reiterated in the First Judges Case (1981).

However, in the Second Judges Case (1993), the court overruled its earlier decisions, introduced collegiums system, and held that “consultation” really meant “concurrence”, and that the CJI’s view enjoys primacy since he is “best equipped to know and assess the worth” of candidates. But, the CJI, in turn, was to formulate his opinion through a body of senior judges that the court described as the collegium.

In 1998, in the Third Judges Case, the court clarified its position further. The collegium, it said, will comprise, in the case of appointments of judges to the Supreme Court, the CJI and his four senior-most colleagues: and, in the case of appointments to the high courts, the CJI, and his two senior-most colleagues. Additionally, for appointments to the high courts, the collegium must consult such other senior judges serving in the Supreme Court who had previously served as judges of the high court concerned.

When through the 99th constitutional amendment, the collegium system was sought to be replaced by the National Judicial Appointments Commission, the Supreme Court swiftly struck it down in the Fourth Judges Case (2015) and ruled that the primacy of the collegium was a part of the Constitution’s basic structure, and this power could not, therefore, be removed even through a constitutional amendment.

---

Important Mains Questions Series for Judiciary, APO & University Exams

1. Constitutional Law Mains Questions Series Part-I
2. Constitutional Law Mains Questions Series Part-I
3. Constitutional Law Mains Questions Series Part-II
4. Constitutional Law Mains Questions Series Part-IV
5. Constitutional Law Mains Questions Series Part-V
6. Constitutional Law Mains Questions Series Part-VI
7. Constitutional Law Mains Questions Series Part-VII
8. Constitutional Law Mains Questions Series Part-VIII
9. Constitutional Law Mains Questions Series Part-IX
10. Constitutional Law Mains Questions Series Part-X