Why in news?

The Union government has notified the repatriation of Justice Yashwant Varma to the Allahabad High Court, following the Supreme Court Collegium’s recommendation.

His transfer comes amid allegations of charred currency notes being recovered from his residence after a fire, prompting Delhi High Court Chief Justice D.K. Upadhyaya to seek an in-house inquiry.

What’s in Today’s Article?

• Transfer of High Court Judges: Constitutional Framework and Judicial Interpretation
• Criticisms of Judicial Transfers in India
• Striking Down of the NJAC: Reasons and Judicial Verdict

Transfer of High Court Judges: Constitutional Framework and Judicial Interpretation

• Article 222(1) of the Constitution empowers the President, in consultation with the Chief Justice of India (CJI), to transfer a judge from one High Court to another.
• Judicial Evolution of Transfer Process
  • First Judges Case (1981): The Supreme Court held that the President's consultation with the CJI did not require concurrence, affirming the executive’s primacy in judicial transfers.
  • Second Judges Case (1993): Overturned the earlier ruling, institutionalizing the collegium system and granting the CJI primacy in transfer decisions. The Court emphasized that transfers must serve the public interest and enhance judicial administration.
  • Third Judges Case (1998): Further refined the collegium system, mandating consultation with the four seniormost judges and seeking inputs from Supreme Court judges familiar with the concerned High Court.
• Process of Transfer
  • The collegium recommends the transfer.
  • The Law Minister reviews and advises the Prime Minister.
  • The Prime Minister forwards the recommendation to the President.
  • Upon presidential approval, the transfer is formalized through a gazette notification.
• Key Considerations
  • The CJI must consult relevant judges and legal experts to prevent arbitrariness.
  • A judge’s consent is not required for transfer.
  • Judicial review of transfer decisions is limited to prevent external interference.

Criticisms of Judicial Transfers in India

• Concerns Over Judicial Independence
  • The International Commission of Jurists (ICJ) has raised concerns about increasing executive interference in judicial appointments and transfers, undermining judicial independence.
• Lack of Transparency and Accountability
  • Judicial transfers, often carried out without the affected judge’s consent, are justified on vague grounds like “public interest” and “better administration of justice.”
  • This ambiguity makes it difficult to differentiate between legitimate and punitive transfers.
• Recommendations for Reform
  • The ICJ has suggested the establishment of a Judicial Council to oversee appointments and transfers based on transparent, objective, and predetermined criteria.
  • It recommends that the council be composed mainly of judges, aligning with international standards of judicial independence.

Striking Down of the NJAC: Reasons and Judicial Verdict

• In 2014, the then government introduced the 99th Constitutional Amendment and the NJAC Act to replace the opaque collegium system for judicial appointments.
• The NJAC was designed as an independent body to appoint Supreme Court and High Court judges.
• Composition of the NJAC
  • The NJAC was to be chaired by the CJI and included:
    • Two senior-most Supreme Court judges
    • Union Law Minister
    • Two eminent civil society members (one from SC/ST/OBC or a woman). These members were nominated by a panel consisting of the CJI, Prime Minister, and Leader of the Opposition.
• Political and Legal Challenges
• The amendment passed almost unanimously in Parliament and was ratified by 16 State legislatures.
• However, it was challenged in the Supreme Court, with critics arguing that the veto power granted to any two NJAC members—potentially including the Law Minister—could undermine judicial independence.
• Supreme Court Verdict (2015)
  • In October 2015, a five-judge Bench ruled (4:1) that the NJAC was unconstitutional, stating that it violated the basic structure of the Constitution, particularly judicial independence.
  • The majority held that the Law Minister and non-judicial members could interfere with judicial appointments, compromising autonomy.
  • Dissenting opinion by Justice Jasti Chelameswar: He criticized the collegium’s lack of transparency, arguing that NJAC could have prevented "unwholesome trade-offs" and "incestuous accommodations" between the judiciary and executive.
  • The verdict restored the collegium system, reinforcing the judiciary’s primacy in appointments but leaving concerns over transparency unresolved.