The Central Government has outlined the constitutional and procedural framework governing the transfer and appointment of judges in the higher judiciary, reiterating that all transfers of High Court judges are carried out in public interest and in accordance with the Constitution and the Memorandum of Procedure (MoP). The details were shared by Union Minister of Law and Justice Arjun Ram Meghwal in a written reply to the Lok Sabha.
Article 222 of the Constitution of India stipulates that the President may, after consultation with the Chief Justice of India, transfer a Judge from one High Court to any other High Court. As per the Memorandum of Procedure (MoP) for appointment and transfer of High Court Judges, the proposal for transfer of High Court Judges is initiated by the Chief Justice of India in consultation with four senior-most puisne Judges of the Supreme Court.
The MoP further provides that the Chief Justice of India is also expected to take into account the views of the Chief Justice of High Court from which the Judge is to be transferred, as also the Chief Justice of the High Court to which the transfer is to be effected, besides taking into account the views of one or more Supreme Court Judges who are in position to offer views.
The personal factors relating to the concerned judge, including the Chief Justice, and his response to the proposal, including his preference of places, should invariably be taken into account by the Chief Justice of India and the first four puisne Judges of the Supreme Court before arriving at a conclusion on the proposal. All transfers are to be made in public interest, that is, for promoting better administration of justice throughout the country. No timeline has been prescribed in the MoP for transfer of judges from one High Court to another.
Appointment of Judges to the Supreme Court and High Courts is made under Articles 124, 217 and 224 of the Constitution of India and according to the procedure laid down in the Memorandum of Procedure (MoP) prepared in 1998 pursuant to the Supreme Court Judgment of October 6, 1993 (Second Judges case) read with the Advisory Opinion of October 28, 1998 (Third Judges case).
As per the MoP, the responsibility for initiation of proposals for appointment of Judges in the Supreme Court vests with the Chief Justice of India, while the responsibility for initiation of proposals for appointment of Judges in the High Courts vests with the Chief Justice of the concerned High Court, in consultation with two senior-most puisne Judges of the High Court.
As per the MoP, the High Courts are required to make recommendations at least six months before the occurrence of a vacancy. For appointments to the High Courts, the views of the concerned State Government are obtained in accordance with the MoP. The recommendations also have to be considered in the light of such other reports as may be available to the Government in respect of the names under consideration. The recommendations of the High Court Collegium, the State Governments and the Government of India are then forwarded to the Supreme Court Collegium (SCC) for advice.
Appointment of judges in the higher judiciary is a continuous, integrated and collaborative process between the executive and the judiciary. It requires consultation and approval from various constitutional authorities at both the State and Central levels. Only those persons whose names have been recommended by the Supreme Court Collegium are appointed as Judges of the High Courts.
This information was given by the Union Minister of Law and Justice, Shri Arjun Ram Meghwal, in a written reply to the Lok Sabha.
