Who can transfer a Judge of a High Court to any other High Court?

A Judge of a High Court, including the Chief Justice of a High Court, can be transferred from one High Court to any other High Court only by the President of India, acting under Article 222(1) of the Constitution, and this power, though textually a Presidential prerogative, has in practice been reshaped through judicial interpretation into a power effectively exercised on the primacy of the Chief Justice of India, acting through the collegium.

Article 222

Article 222(1) provides that the President may, after consultation with the Chief Justice of India, transfer a judge from one High Court to any other High Court. Article 222(2) further provides that 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 the 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. This compensatory allowance provision recognises that a transfer, even where constitutionally valid, may impose genuine personal and financial hardship on a judge required to relocate to a different State, and seeks to mitigate that hardship through a statutory or presidentially fixed allowance.

The bare text of Article 222(1), therefore, identifies the President as the formal authority for effecting the transfer, subject only to the procedural requirement of consultation with the Chief Justice of India, without specifying any further criteria, safeguards, or the weight to be given to the Chief Justice's opinion, a gap the Supreme Court has filled through successive rounds of interpretation.

Judicial Interpretation of the Consultation Requirement

The meaning and binding character of the word "consultation" in Article 222(1) has evolved through the same trilogy of decisions that shaped the analogous appointment power under Article 124, given the structural similarity between the two provisions.

In Union of India v. Sankalchand Himatlal Sheth, the Supreme Court held that the power of transfer under Article 222(1) could be exercised even without the consent of the judge concerned, since the Article does not make consent a precondition, but the Court simultaneously emphasised that such power must be exercised bona fide, in the public interest, and only for compelling reasons connected with the better administration of justice, such as strengthening a High Court that requires judges of particular expertise or addressing a genuine administrative need, and not as a means of punishing, humiliating, or victimising a judge for any unconnected purpose. The Court held that "consultation" in this context means a full and effective consultation, requiring the President to place all material facts before the Chief Justice of India and to genuinely consider his opinion, though at that stage the Chief Justice's opinion was not held to be binding on the executive.

This position on the binding character of the Chief Justice's opinion was reconsidered in Supreme Court Advocates-on-Record Association v. Union of India, the Second Judges Case, where a nine-judge Bench held that in matters of both appointment and transfer of judges under Articles 124 and 222, the opinion of the Chief Justice of India, formed through a collegium of senior judges rather than as an individual opinion, would have primacy, and the executive could depart from such a recommendation only in exceptional circumstances, for reasons that must be recorded and communicated. This decision effectively transformed transfer under Article 222 from an executive-driven power exercised after mere consultation into a judiciary-led process in which the collegium's recommendation carries decisive weight.

The Third Judges Case, In re Special Reference No. 1 of 1998, arising from a Presidential Reference following the Second Judges Case, refined the procedure specifically applicable to transfers, holding that a proposal for transfer of a High Court judge must be initiated by the Chief Justice of India, formed in consultation with the four senior-most judges of the Supreme Court, and further requiring that the Chief Justice of India consult the Chief Justices of both the High Court from which the judge is to be transferred and the High Court to which the judge is to be transferred, along with the views of at least one Supreme Court judge conversant with the affairs of the relevant High Court, before finalising the recommendation.

Guiding Principles From the Case Law

Several principles emerge from this body of case law governing when and how the transfer power under Article 222 may be legitimately exercised.

• A transfer must never be used as a punitive measure or as a means of victimising a judge, and must instead be justified by considerations genuinely connected to the better administration of justice, such as the need for judicial expertise in a particular High Court, addressing regional imbalance, or reducing the risk of undue local influence on a judge sitting in his own home State for an extended period.

• Consent of the judge is not constitutionally required under Article 222(1) itself, as held in Sankalchand Himatlal Sheth, though as a matter of settled practice following subsequent developments, transfers are ordinarily made only with the judge's consent, except in exceptional circumstances involving specific allegations of misconduct or similar compelling reasons.

• The recommendation for transfer must originate from the Chief Justice of India in consultation with the collegium of four senior-most judges, and must further involve consultation with the Chief Justices of both the High Courts concerned, following the procedure laid down in the Third Judges Case.

• Once the collegium reiterates a recommendation after the President has sought reconsideration, the recommendation becomes binding on the executive, mirroring the process applicable to appointments under Article 124.

Illustration

Suppose the Chief Justice of India, in consultation with the collegium, forms the opinion that a particular High Court would benefit from the addition of a judge possessing specialised expertise in commercial or intellectual property law, currently available on the Bench of another High Court, and accordingly recommends the transfer of that judge. Following the procedure in the Third Judges Case, the Chief Justice of India would consult the Chief Justices of both High Courts and at least one Supreme Court judge familiar with the concerned High Courts before finalising the recommendation, which is then forwarded through the Law Ministry to the Prime Minister and ultimately to the President for formal issuance under Article 222(1). If the President has reservations and returns the recommendation for reconsideration, but the collegium reiterates its original recommendation, the President is then constitutionally bound to give effect to the transfer, consistent with the binding force of a reiterated collegium recommendation established since the Second and Third Judges Cases. Contrast this with a hypothetical transfer motivated solely by a desire to remove a judge who has passed rulings unfavourable to the executive; such a transfer, lacking any genuine connection to the administration of justice, would fall foul of the standard laid down in Sankalchand Himatlal Sheth and would be liable to be struck down as a mala fide and colourable exercise of the power.

The power to transfer a High Court judge, therefore, formally vests in the President under Article 222(1), but the substantive decision-making authority, through decades of judicial interpretation beginning with Union of India v. Sankalchand Himatlal Sheth and consolidated through the Second and Third Judges Cases, has come to rest firmly with the Chief Justice of India acting through the collegium, ensuring that the transfer of High Court judges, an area especially sensitive to the risk of executive interference with judicial independence, remains a decision genuinely driven by the judiciary rather than by the political discretion of the government of the day.