1.8. Transfer of Judges

Article 222 of the Constitution makes provision for the transfer of a Judge (including Chief Justice) from one High Court to any other High Court. The initiation of the proposal for the transfer of a Judge should be made by the Chief Justice of India (CJI). Consent of the Judge for transfer would not be required. CJI is expected to take into account the views of the Chief Justice of the High Court from which the Judge is to be transferred and Chief Justice of the High Court to which the transfer is to be effected.

The proposal once referred to the Government, the Union Minister of Law, Justice and Company Affairs would submit a recommendation to the Prime Minister who will then advise the President as to the transfer of the Judge concerned. After the President approves the transfer, the notification will be gazette and the judge remains transferred. In case of transfer, the judge is entitled to receive compensatory allowances in addition to his salary as determined by the President.

The Supreme Court ruled that transfer of High Court Judges could be resorted to only as an exceptional measure and only in public interest, not by way of punishment. In Third Judges case (1998), the Supreme Court opined that in case of transfer of judges, Chief Justice of India should consult in addition to collegiums of four senior most judges of Supreme Court, the Chief Justices of two High Courts (one from which the judge is being transferred and other receiving him). The Supreme Court also ruled that judicial review is necessary to check arbitrariness in transfer of judges, but only the judge who is transferred can challenge it.