‘Nod of judge not needed for transfer’

Justice C.S. Karnan

Justice C.S. Karnan  

‘The power of transfer can be exercised only in public interest, that is, for promoting better administration of justice’

Justice C.S. Karnan, who was issued contempt notice for allegedly penning scurrilous communications against High Court and Supreme Court judges, had upset judicial hierarchy by having suo motu stayed a Supreme Court Collegium recommendation to transfer him from the Madras High Court to the Calcutta High Court last year.

In February 2016, as a Madras High Court judge, Justice Karnan stayed his own transfer order and questioned the Chief Justice of India’s comment that the transfer was recommended for reasons of “better administration.” He had later expressed regret and was shifted out after the President signed the warrant and set a deadline for him to join the Calcutta High Court.

Hearing on Feb. 13

The seven-judge Bench led by Chief Justice of India J.S. Khehar is scheduled to hear Justice Karnan argue in person on the transfer order on February 13. The contempt of court hearing is also posted for the same date.

A plethora of Supreme Court decisions deals with the procedure and philosophy behind judges’ transfer policy. These Constitution Bench decisions weigh, among other questions, whether prior consent of a High Court judge is necessary before transferring him or her from one High Court to another. Article 222 (1) of the Constitution deals with the transfer of a High Court judge to another High Court. It says that the “President may, after consultation with the Chief Justice of India, transfer a judge from one High Court to any other High Court.”

The Supreme Court, in the Second Judges Case of 1993, had held in a majority judgment that consent of the judge was not necessary for transferring him out, provided it was done with the full and effective consultation with the Chief Justice of India. The transfer should be done in public interest and not as a punishment.

The 1993 judgment referred to the 1977 decision of the Supreme Court in Union of India versus Sankal Chand Sheth case and S.P. Gupta verdict of 1982, both of which had held that there was no requirement of prior consent of the judge concerned before his transfer under Article 222. “The power of transfer can be exercised only in public interest, that is, for promoting better administration of justice throughout the country,” the Supreme Court had held in 1993. It had held that “any transfer in accordance with the recommendations of the Chief Justice of India cannot be treated as punitive or an erosion in the independence of the judiciary.”

The 1993 judgment had held that there should be no reason for a judge to even think that his transfer was punitive when it is made in accordance with the recommendation of the Chief Justice of India.

Quotes Ambedkar

In the Sankal Chand Sheth case, the Supreme Court quotes Dr. B.R. Ambedkar on judges’ transfer in the Constituent Assembly. Dr. Ambedkar had said that a judge may be shifted from one High Court to another to strengthen the High Court by importing better talents which may not be locally available.

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Printable version | Jun 6, 2020 11:14:29 AM |

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