November 20, 2017
Responding to a representation, the Ministry of Law and Justice issued a clarification on November 15, 2017 stating that a Judge’s consent was not required before transferring him. The Law Ministry further elucidated that Article 222 of the Constitution of India makes provision for transfer of a Judge (including Chief Justice) from one High Court to any other High Court. The initiation for the proposal for the transfer of a Judge should be made by the Chief Justice of India whose opinion in this regard is determinative. Consent of a Judge for his first or subsequent transfer would not be required. All transfers are to be made in public interest i.e. for promoting better administration of Justice.
It may be pertinent to mention here that in plethora of decisions, the issue regarding Judge’s transfer and consent thereto has been raised. The matter was also contested in February, 2016 in erstwhile Justice C.S. Karnan case. In the case, Justice Karnan had himself stayed his transfer order. In the case of Supreme Court Advocates-on-Record Association & Anr. v. Union of India (Second Judges’ Case of 1993), the Supreme Court had held that Judge’s consent was not required for transferring him provided it was done with full and effective consultation with the Chief justice of India. The Court in the case further stated that the power of transfer can be exercised only in public interest i.e. for promoting better administration of justice.