Judicial transfers: Help or hindrance?

Last month, two bar associations protested two separate transfer recommendations of the Supreme Court’s collegium. Justice Yashwant Varma’s transfer to the Allahabad High Court was vehemently opposed due to a then ongoing investigation against him. While at the Karnataka High Court, the lawyers protested the simultaneous transfer of four judges, claiming it would result in unjustified speculations about their integrity and efficiency. Judicial transfers in India have a long, contentious history. In the past too, bar associations, eminent lawyers, and, sometimes, even judges have opposed transfers. Those who do so contend that transfers expose the judiciary to executive interference and administrative disruption. On the other hand, the executive maintains that they are necessary to promote better administration of justice. Yet, a closer examination reveals that transfers offer little systemic value to the judiciary.

The possibility of executive interference was not lost on the Constituent Assembly when it introduced the provision for judicial transfers. B R Ambedkar was well aware that it may be used against judges who become “inconvenient” or give unfavourable decisions against the government. To safeguard against this, the provision required transfers to be made in consultation with the Chief Justice of India. The Second and Third judges’ cases further strengthened this safeguard by establishing a collegium.

On paper, this might seem sufficient, for the collegium refers the names of the judges to the President, who then issues the transfer orders. However, this does not preclude the executive from strategically issuing such orders to send a message to “inconvenient” judges. For instance, Justice S Muralidhar was transferred on the night he directed the Delhi Police to register FIRs against certain political leaders for making hate speech. Granted, his transfer had been recommended earlier in the month by the collegium, but in processing the recommendation, the Union government acted with an alacrity uncharacteristic of its usual languid pace. To contextualise, last year in a response to a question in the Lok Sabha, the law minister stated that five transfer recommendations of the collegium were pending with the government for longer than six months. Much like appointments, transfer recommendations too are subject to pocket-veto and cherry-picking.

Interestingly, transfers also alter the seniority order between judges in a court. Convention dictates that the senior-most judges, on account of their experience and expertise, be considered for elevation to the Supreme Court or the office of the Chief Justice of the High Court. However, seniority as it is understood is considered inter se judges in a court and not between judges of different High Courts. This means that a judge who is the second senior-most in a specific court may well be the eighth senior-most in the court he is transferred to. As may be inferred, transfers are useful tools to expedite or obstruct seniority. A 2022 research shows that 52% of the judges who eventually became CJs were never transferred.

Even apart from these concerns, transfers cause significant administrative and judicial upheaval. A transferred judge must navigate unfamiliar local laws, courtroom conventions, and litigation practices. Part-heard cases must be reheard. All district court records and orders must be translated. All this, inevitably, amplifies delays and costs in an already overburdened system.

A Supreme Court Observer study of 88 transfer recommendations between 2017 and 2021 revealed that 59% of the resolutions did not provide any reasons whatsoever for the transfers. Of the resolutions that did provide reasons, 26% stated that transfers were recommended for the “better administration of justice”. Transfers are often touted to improve administration through an exchange of expertise and bias prevention. However, for this to work, transfers need to be routine and well-planned. Irregular, selective transfers undermine, rather than aid, judicial administration because of the absence of a comprehensive transfer policy.

Concerns over diversity

About 4% of the transfers were recommended for filling vacancies in courts. While the shortage of judges is a persistent, nagging problem within the judiciary, using transfers to fill vacancies is a zero-sum game. Presently, all the High Courts, except Meghalaya and Sikkim, are functioning at less than the sanctioned strength. A transfer from any one High Court to another is bound to create vacancies at the parent HC unless compensated for with new appointments. Therefore, unless any court has a surplus of judges (highly unlikely), transfers are an ineffective strategy when dealing with vacancies. In the present instance also, while four judges are being transferred from the Karnataka High Court, only two are being transferred to the Court, leaving two vacancies to be filled.

The current collegium resolution recommends the transfer of the Karnataka High Court judges to “infuse inclusivity and diversity” across High Courts. That the Indian judiciary is sorely lacking in diversity is no secret. According to a written response by the Law Minister in 2023, three out of four High Court judges appointed since 2018 are from the upper castes. SCs and STs together comprise only 4% of the judges and only 14% of the High Court judges are women. Measures to address this lack of diversity are urgently needed. However, when even the available pool of judges lacks diversity, it is unclear how shuffling them around will help. Instead, attempts must be made to address the barriers to access and participation that the underrepresented groups experience.

The risks to judicial independence and credibility heavily outweigh any purported benefits that transfers may offer. Judicial transfers, as they are effected today, tend to hinder rather than aid judicial administration. It is unclear how these transfers address systemic issues such as vacancies and lack of diversity, when more effective solutions, like reservations and appointment of retired judges, exist. Transfers are susceptible to the same pitfalls as appointments. Unless they become routine and indiscriminate, the judiciary must reconsider handing the executive another instrument of control.

(The writer is a research fellow at the Vidhi Centre for Legal Policy)