A modern, mature democracy must ensure that its judicial institutions are not only independent but also seen to be fair, open, and accountable. In the interest of justice, it is time that the silent dynamics of judicial transfers are brought into the light.
Published Jul 24, 2025 | 8:00 AM ⚊ Updated Jul 24, 2025 | 8:00 AM
Judicial transfers. Representative Image. (iStock)
Synopsis: The Indian Collegium System plays a crucial role in the transfer of high court judges. This lack of transparency is one of the most persistent and serious criticisms of the Collegium System. By adopting a transparent policy, codifying procedures through a finalised MoP, involving judges in consultative processes, and offering public reasoning for transfers and re-transfers, the judiciary can reinforce its credibility.
The Indian Collegium System, though widely known for its role in appointing judges to the higher judiciary, also plays an equally crucial — and often contentious — role in the transfer of high court judges. While the transfer mechanism is constitutionally provided under Article 222, its execution and implications have been a matter of intense debate and growing public interest.
These transfers, at times cloaked in opacity and executed without the consent of the affected judges, raise serious concerns over institutional transparency, judicial independence, and administrative fairness.
The genesis of the Collegium System is rooted in a trio of landmark Supreme Court rulings that progressively shifted control over judicial appointments and transfers from the executive to the judiciary.
In the First Judges Case (SP Gupta v. Union of India, 1981), the executive was given primacy in the process, particularly in matters of appointments and transfers. However, this position was overturned in the Second Judges Case (1993), where the Court reinterpreted the term “consultation” with the Chief Justice of India to mean “concurrence.”
This essentially established the Chief Justice of India’s (CJI) primacy and brought the entire process firmly under judicial control.
The Third Judges Case (1998) expanded this further by institutionalising a five-member Collegium — comprising the CJI and the four senior-most judges of the Supreme Court — to collectively decide on appointments and transfers.
While this structure was meant to insulate the judiciary from political and executive interference, it has since been criticised for its lack of transparency, particularly in the context of judge transfers.
Article 222 of the Constitution authorises the President to transfer a judge from one high court to another after consultation with the CJI. However, in practice, it is the Collegium that drives this process.
Although the President signs the order, the Collegium’s recommendation is binding, making it the real seat of power in such matters. A particularly troubling aspect of this mechanism is the absence of the judge’s consent.
Unlike appointments, where an appointee can decline elevation or induction, transfers are mandatory. A judge can be moved from one high court to another, often across linguistic and geographical boundaries, without an opportunity to accept or reject the transfer.
The judiciary frequently justifies such transfers in the name of “public interest” or “better administration of justice,” but these terms remain undefined and are seldom elaborated upon. As a result, many such decisions are perceived as arbitrary, lacking in objectivity, and, in some cases, as indirect disciplinary actions.
This lack of transparency is one of the most persistent and serious criticisms of the Collegium System. While judicial appointments receive greater media scrutiny, transfers often go unnoticed — despite their significant impact on a judge’s personal and professional life, and the institutional integrity of the judiciary.
Transfers are often executed without any public reasoning or clear criteria. Collegium decisions are taken behind closed doors and, even in recent years when some resolutions have been made public, explanations for transfers are either vague or completely absent.
While the judiciary defends this opacity on grounds of protecting judges’ reputations or safeguarding institutional interests, such secrecy undermines public confidence and leaves room for speculation. The lack of stated reasons fosters doubts — especially when transfers follow judgements in politically sensitive cases.
Even if such transfers are purely administrative, the absence of communication creates a perception of retaliation, which can be just as damaging to judicial credibility.
The impact on judicial independence is significant. When transfers appear arbitrary, or possibly punitive, they can have a chilling effect on judges. Fear of being moved away from a familiar jurisdiction or being isolated from one’s linguistic and cultural environment may discourage judges from making unpopular but necessary decisions.
If a judge believes that a transfer may be a consequence of a bold ruling, it risks compromising their independence and impartiality. Judicial independence does not merely involve freedom from executive influence; it also includes insulation from institutional coercion, however subtle or internal it may be.
This issue is further compounded by the lack of a finalised Memorandum of Procedure (MoP). Since the 2015 Supreme Court judgement that struck down the National Judicial Appointments Commission (NJAC), efforts to formalise the MoP for appointments and transfers have stalled.
The absence of such a framework allows for ad hoc decisions and contributes to institutional friction, particularly between the judiciary and the executive.
While the Collegium’s recommendation is considered final, the executive’s involvement in issuing orders and raising objections can lead to procedural delays, signalling deeper structural discomfort.
A particularly recent and noteworthy trend is the rise in re-transfers — where judges are transferred back to their original high courts after brief stints elsewhere. These decisions, often lacking in explanation, further cloud the rationale behind transfers.
For example, if a judge is sent to a different high court and then brought back within months, it begs the question — what was the purpose of the original transfer?
The simultaneous occurrence of such re-transfers, alongside fresh transfers, presents an image of inconsistency. While there may be valid administrative or personal grounds for such decisions—such as health concerns or family considerations—their opacity continues to breed suspicion.
The Supreme Court Collegium has in recent months offered assurances of reforms. Statements by Chief Justices, including a renewed emphasis on transparency, merit, and representation, are promising. Some Collegium resolutions, especially those related to appointments, are now published online with brief rationales.
However, this culture of openness must extend to transfers as well. A simple statement — such as a need to bolster judicial strength in a specific high court or address case backlogs in a particular jurisdiction — can go a long way in restoring faith in the process.
The principle of transparency, long demanded by the judiciary from other arms of government, must equally apply to its functioning.
Further, involving judges in the decision-making process, even in a limited consultative capacity, could strengthen morale and institutional integrity. While logistical constraints may not allow for a complete consent-based system, allowing judges to express preferences regarding timing or region would reflect empathy and respect for their personal and professional situations.
An internal review mechanism could also be introduced, allowing judges to seek procedural clarifications or raise concerns without undermining the authority of the Collegium. Such steps would go a long way in enhancing accountability.
Ultimately, the transfer of high court judges is not a mere administrative formality. It is a deeply consequential process that touches upon judicial autonomy, public trust, and the very essence of fairness in the judiciary.
The promise of judicial independence cannot be limited to the point of appointment; it must be protected and preserved throughout a judge’s career.
Transfers, when used appropriately, can help reduce regional bias, address logistical gaps, and ensure diversity. However, if they continue to be shrouded in secrecy, they risk becoming tools of institutional overreach rather than instruments of reform.
In conclusion, judicial transfers — particularly within the framework of the Collegium System — need urgent and thoughtful reform.
By adopting a transparent policy, codifying procedures through a finalised MoP, involving judges in consultative processes, and offering public reasoning for transfers and re-transfers, the judiciary can reinforce its credibility.
A modern, mature democracy must ensure that its judicial institutions are not only independent but also seen to be fair, open, and accountable. In the interest of justice, it is time that the silent dynamics of judicial transfers are brought into the light.
(Views are personal. Edited by Muhammed Fazil.)
