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Transfer of judges and maintenance of the independence and salvation of judiciary

No doubt that under Article 222 the express provision of obtaining a previous consent is missing but the same is vogue since 1977 else why the transfer of judges is not a routine than exception?

I have read the view of Shri Dhananjay Mahapatra on the issue of transfer of High Court judges “not justiciable except for the improper consultation by Chief Justice of India”. The author of the article was of the view that as per Article 222 of Constitution of India no consent is required from the judge under transfer. He relied upon the “First judges, Second judges and the Third judges” case for supporting his view.

Surprisingly no reference was seen in the article to the popularly known as “NJAC” case reported in “2016 (5) SCC 1. Why the said datum was missing is curious? The 5 Judges Constitution Bench without mincing the words held that Article 222 is necessary for the Independence of Judiciary and therefore they held the amendment of Article 124-A is against the basic fabric of the Constitution. Knowing Mr Mahapatra from his past articles, I am certain that he is nobody’s adherent and has a voice of his own.

Unfortunately he has doubted the knowledge of lawyers on the compensatory allowance, which a Judge receives on his transfer from the parent High Court. A successful lawyer never accepts the Bench for the sake of compensatory allowance. No doubt it’s an honour for any lawyer who is considered for elevation but reputation and integrity for some is paramount than receiving compensatory allowance.

A judge cannot be merely transferred because of dissonance. Certainly Justice Murlidhar was transferred without taking any prior consent. No reason for any public interest is ostensibly seen in his transfer when he could have been Acting Chief Justice of Delhi High Court. The other reason for the transfer, which is in circulation, is that Justice Murlidhar gave certain decisions, which were contrary to the “Bolshevism”.

For such transfers only Article 222 is still maintained in the Constitution. Its purpose is to maintain the independence and salvation of judiciary. No doubt that under Article 222 the express provision of obtaining a previous consent is missing but the same is vogue since 1977 else why the transfer of judges is not a routine than exception?

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Sameer Vashisht
B.Com, LLB (Hons), LLM Additional Standing Counsel (Civil), GNCTD Enrolled with Bar Council of Delhi in 2002.

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