Transfer of HC judges not justiciable, except for improper consultation by CJI

There are 1,079 judges in 25 high courts in the country. Between January 10, 2019, and February 12, 2020, the collegium headed by the Chief Justice of India recommended transfers of 24 judges and nine chief justices from one HC to another. This means, only three in 100 judges faced transfer in a year.
Most transfers went unnoticed by advocate associations.But in a few instances, advocate associations protested and even took the extreme step of boycotting court work. It is difficult to fathom why lawyers protest against the transfer of some judges but keep quiet for others.
Before the collegium came into force in the 1990s, transfer of judges was a mundane affair. It came under the spotlight during the dark days of Emergency, when 16 judges were transferred from one HC to another. The executive had wreaked vengeance against them for entertaining habeas corpus petitions filed on behalf of those detained under the Maintenance of Internal Security Act (MISA).
One of them, Justice Sankalchand Himatlal Sheth, was transferred from Gujarat HC to Andhra HC on May 27, 1976. He challenged the transfer saying he had not consented to it and that it breached law minister A K Sen’s promise to Lok Sabha in 1963 that “so far as HC judges are concerned, they should not be transferred excepting by consent”.
The Gujarat HC struck down the transfer. The Union government challenged it in the SC. Though the change of government in 1977 saw Justice Sheth being transferred back to Gujarat HC, a five judge SC bench went on to give an authoritative pronouncement on the issue of transfer.
In the Sheth case [1977(4) SCC 193], the SC said sometimes transfer of a judge becomes a compulsion because of close nexus he develops with local interests. It had said, “The factitious local atmosphere sometimes demands the drafting of a judge or a chief justice from another HC and on rarest of rare occasions, which can be counted on the fingers of a hand, it becomes necessary to withdraw a judge from a circle of favourites and non-favourites.
“Though transfers in such cases are pre-eminently in public interest, it will be impossible to achieve that purpose if a judge cannot be transferred without his consent. His personal interest may lie in continuing in a court where his private interest will be served best, whereas, public interest may require that his moorings ought to be served to act as a reminder that ‘the place of justice is a hallowed place’. It is difficult to impose limitations on constitutional provisions as contained in Article 222 by importing the concept of consent which is conspicuously absent therefrom.”
Then came the ‘first judges case’ [S P Gupta; 1981 Supp (1) SCC 87], in which a sevenjudge bench reiterated the ruling in Sheth case and said there was no need of prior consent of a judge before his transfer. It was followed by the ‘second judges case’ in October 1993 and the ‘third judges case’ in October 1998. The second case laid the foundation for the ‘collegium system’, which allowed judges to select judges. It was expanded by the third case. In both cases, the SC had said plurality in decision-making by involving many other judges, while according primacy to the CJI, would rule out arbitrariness in selection of persons for appointment and transfer as high court judges.
It said a judge’s transfer could not be challenged before a court on any ground, including bias, except for the reason that there was improper consultation by the CJI before recommending to the government to transfer a judge. “Any transfer in accordance with the recommendation of the CJI cannot be treated as punitive or an erosion in the independence of judiciary,” it said. However, the SC did ask the CJI to take into account personal difficulties and preference for transfer of the judge concerned.
However, 27 years ago, it did notice the nexus between certain judges and bar associations and the use of public interest litigation to challenge certain transfers and appointments. It had highlighted the “growing tendency of needless intrusion by strangers and busybodies in the functioning of the judiciary under the garb of public interest litigation”.
In S P Gupta case, the SC had said, “It has, however, to be made clear that it cannot be said that lawyers only, because they have a right to practice in a court, have ‘locus standi’ to file petitions in respect of every matter concerning judges, courts and administration of justice.”
And probably not many lawyers know that under Article 222, a judge transferred out of his parent high court to another state gets compensatory allowance.
Last year, Telangana HC advocates association protested the transfer of Justice P V Sanjay Kumar to Punjab and Haryana HC. It was followed by protests against Madras HC CJ V K Tahilramani’s transfer to Meghalaya HC. Lawyers even protested shifting of Justice Zaka Haq from Nagpur bench to Aurangabad bench of Bombay HC. And now, Delhi HC advocates abstained from work against the transfer of Justice S Muralidhar to Punjab and Haryana HC.
Most often, the ground for protest against transfer is that the judge is “upright and honest”. Does that mean other judges, whose transfers do not evoke protest, are not upright or honest? Is there a constitutional provision prohibiting transfer of ‘upright and honest’ judges? Can bar leaders spell out the real reason for protests against transfer of some judges?