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.
Transfer of Judges in India
During the transfer procedure of Judges, a prior consultation has to be performed with the “chief justice
of India ”, and after that, the President transfers the judge from one court to another. However, as per
article 222, for the judge, there is a provision regarding transferring to one high court from another.
Although the president gets the authority to transfer the judge, however, the main decision of transfer
has been made by the “chief justice” of India. In Indian constitutional history, various transfer cases of
judges have been present. One example is the transfer of “Jayant Patel”, who on 16th February 2016,
was transferred from Gujarat to Karnataka after serving 10 years as “chief justice” of Gujarat.
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.
Transfer Procedure – High Curt Judges
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.
Transfer process of cases from one judge to another
As per the “Criminal Procedure Code, section 526”, one judge of the high court can hand over the cases
to another judge of another high court. Moreover, to perform “civil laws” and “criminal laws”, both the
“Supreme court”, “High court” and “District court” to “Civil judge court class I” as well as “Civil judge
court class II” have been participating. However, based on “section 25”, after generating an application
for transferring the cases, the judge of the “Supreme court” becomes capable to transfer any civil or
criminal cases from one judge to another judge of a different court and different state.
Conclusion
It has been concluded that, in India, the transfer of high judges has been executed based on “Article
222” under the supervision of “Chief justice” by the President. Although the clear parameter of transfer
of high court judges has not been determined, the transfer has been performed to secure the
constitution and justice. However, during the transfer of cases from state to state and from one high
court to another the “chief justice” of the “Supreme court” holds this authority.
