A PROJECT REPORT ON - CONSTITUTIONAL PROVISIONS

RELATING TO TRANSFER OF JUDGES

SCHOOL OF LAW
MANIPAL UNIVERSITY JAIPUR

UNDER SUPERVISION OF: SUBMITTED BY:

ABHAY JAIN MUKUL BAJAJ
SENIOR PROFESSOR 151301052
 CERTIFICATE

This is to certify that Mr. Mukul Bajaj student of B.A. LL.B (Hons.) second semester school
of Law Manipal University Jaipur has completed the project work entitled
CONSTITUTIONAL PROVISIONS RELATING TO TRANSFER OF JUDGES under my
supervision and guidance.
It is further certify that the candidate has made sincere efforts for the completion of the project
work.

SUPERVISOR NAME
ABHAY JAIN
SENIOR PROFESSOR
 ACKNOWLEDGEMENT.

I express deep sense of gratitude and indebtness to our teacher ABHAY JAIN Under whose
guidance valuable suggestions, constant encouragement and kind supervision the present
project was carried out. I am also grateful to college faculty of law for their feedback and for
keeping us on schedule.
I also wish to express my sincere thanks to my friends who held directly or indirectly by giving
their valuable suggestions.

MUKUL BAJAJ
TABLE OF CONTENTS
INTRODUCTION ................................................................................................................................................ 5

TRANSFER OF JUDGES FROM ONE HIGH COURT TO ANOTHER. (ARTICLE 222) ........................ 6

CONCLUSION ..................................................................................................................................................... 9

BIBLIOGRAPHY ............................................................................................................................................... 10

WEBLIOGRAPHY ............................................................................................................................................ 11
INTRODUCTION
The President may, after consultation with Chief Justice of India, transfer a Judge from one
High Court to any other High court. When a judge has been or is so transferred, he shall, during
the period he serves, after the commencement of 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 determined by Parliament by law and, until so determined
such compensatory allowance as the President may by order fix.
When the office of Chief Justice of a High Court is vacant or when any such Chief Justice is,
by reason of absence or otherwise, unable to perform the duties of his office, the duties of the
office shall be performed by such one of the other Judges of the Court as the President may
appoint for the purpose.
Notwithstanding anything in this Chapter, the Chief Justice of a High Court for any State may
at any time, with the previous consent of the President, request any person who has held the
office of a Judge of that Court or of any other High Court to sit and act as a Judge of the High
Court for that State, and every such person so requested shall, while so sitting and acting, be
entitled to such allowances as the President may by order determine and have all the
jurisdiction, powers and privileges of, but shall not otherwise be deemed to be, a Judge of that
High Court.
TRANSFER OF JUDGES FROM ONE HIGH COURT TO ANOTHER.
(ARTICLE 222)
1. The President may, after consultation with Chief Justice of India, transfer a Judge from one
High Court to any other High court.
2. When a judge has been or is so transferred, he shall, during the period he serves, after the
commencement of 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 determined by Parliament by law and, until so determined such compensatory
allowance as the President may by order fix.

There was no specific provision in the Government of India Act, 1935, for the transfer of a
judge from one high court to another. The present article empowers the President, after the
consultation with Chief Justice of India, to transfer a judge from one High Court to another.

In Union of India v. Sankalchand H. Sheth , the validity of a presidential notification

transferring Justice Sankalchand H. Sheth from Gujarat High Court to Andhra High Court was
challenged among others on the ground that the transfer was without the consent of the Judge
and without consultation with Chief Justice of India. Although before the pronouncement of
the courts decision a settlement was reached between the parties and the Government of India
admitted that there was no justification for transferring Justice Sheth from Gujarat high court,
the Court, in view of importance of the issue and in view of the fact that the case has been hotly
argued before the settlement, gave four elaborate opinions. All the judges agreed that
independence of judiciary was an essential and vital ingredient of our legal system and the
threat of transfer at whims and caprices of the executive constitutes a major inroad in that
independence. Therefore, transfer of judges can only be made in public interest. Any transfer
which is not in the public interest can be challenged in the courts as ultra vires or without
jurisdiction. Moreover, no transfer can be made without consultation with chief justice of
India. Consultation does not mean concurrence; but certainly it means that there must be due
deliberation between Chief Justice and the President on full and identical facts, i.e. on each and
every aspect concerning the transfer and each and every fact or document taken into
consideration for that purpose. If any information, fact or issue is withheld from the Chief
Justice which the President takes into account or vice-versa in deciding the question of transfer
of a judge, it shall be a decision without consultation with the chief justice and therefore in
violation of Article 222. While two of the Judges, Bhagwati and Untwalia, JJ. were of the
opinion that no transfer could be made without the consent of the judge concerned, the majority,
Chandrachud, Krishna Iyer and Fazal Ali, JJ., held that such consent was not necessary.
The decision in Sankalchand Sheth was followed in SP Gupta v. Union of India, by a larger
bench of the court upholding the validity of circular letter from the Union Minister of Law and
Justice to the chief ministers of the state asking them to obtain the consent of the additional
judges in the High Courtof their state as well as of the persons to be proposed to be appointed
to the High Court was challenged upholding the Circular, the Supreme Court decided that it
could be pursued as a policy iin the interest of national integrationwithout a threat to judicial
independence. But inspite of the consent by the judge every transfer must satisfy the
requirements laid down in Sankalchand Sheth, i.e., it must be in the national interest and after
consultation with the Chief Justice of India. It cannot be used as a threat or punishment to
judges. The court also held that the expression judge: in Article 222(1) includes Chief
Justice and accordingly it upheld the transfer of Chief Justice of Patna High Court to Madras
High Court, of course as Chief Justice.
With regard to transfers further clarifications have been made in the second Judges case and
The Third Judges Case. The Court held that in the matter of transfer of a Judge from one High
Court to another the opinion of Chief Justice of India not only has primacy but is determinative.
Consent of the judges concerned is not required either for the initial or subsequent transfer. The
Chief Justice of India shall from his opinions in consultation with the chief justice of that High
Court as well of the High Court where a judge is to be transferred and also of one or more
judges of the Supreme Court who are in a position to provide material which would assist in
the process of deciding whether or not a proposed transfer should take place. The views of
three judges must be obtained in writing as well as the response of the judge to be transferred
should finally be placed before a collegium consisting of the chief justice of India and four
seniormost judges of the Supreme Court. The views of each member of collegium along with
the views placed before the collegium should be conveyed to the Government of India along
with the proposal of transfer. The personal factors relating to the judge concerned and his
response to the proposal including his preference of places of transfer should be taken into
account by the Chief Justice of India before forming an objective final opinion. Any transfer
so made is not to be deemed punitive. Thus the conditions for transfer of a judge have been
made even more demanding than the conditions for appointment. A transfer is also subject to
judicial review on the petition of the transferred judge on the ground of lack of consultation
and non-observance of the decision making process.
Clause (2) added by constitution Act, 1963, makes provision for the grant of compensatory
allowance to a judge on transfer to another High Court.
CONCLUSION
The President may, after consultation with Chief Justice of India, transfer a Judge from one High
Court to any other High court. When a judge has been or is so transferred, he shall, during the period
he serves, after the commencement of 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 determined by Parliament by law and, until so determined such compensatory allowance as the
President may by order fix.

When the office of Chief Justice of a High Court is vacant or when any such Chief Justice is, by reason
of absence or otherwise, unable to perform the duties of his office, the duties of the office shall be
performed by such one of the other Judges of the Court as the President may appoint for the
purpose.

Notwithstanding anything in this Chapter, the Chief Justice of a High Court for any State may at any
time, with the previous consent of the President, request any person who has held the office of a
Judge of that Court or of any other High Court to sit and act as a Judge of the High Court for that
State, and every such person so requested shall, while so sitting and acting, be entitled to such
allowances as the President may by order determine and have all the jurisdiction, powers and
privileges of, but shall not otherwise be deemed to be, a Judge of that High Court.
BIBLIOGRAPHY
1. V.N. Shukla, Constitution of India, 10th Edtition, Eastern Book Company.
2. J.N. Pandey, Constitutional Law of India, 6th Edition, Cental Law Agency.
WEBLIOGRAPHY
1. lawmin.nic.in/ncrwc/finalreport/v1ch7.htm
2. indiacode.nic.in/coiweb/amend/amend15.htm
3. legalsutra.com/842/transfer-and-removal-of-judges/
4. https://polityinindia.wordpress.com/tag/appointment-and-transfer-of-judges/