What happened

The Union Minister of Law and Justice, Shri Arjun Ram Meghwal, gave a written reply in the Lok Sabha describing the constitutional and procedural basis for transfer and appointment of judges in the higher judiciary. The key points highlighted were: Article 222 empowers the President to transfer a High Court judge from one High Court to another. The President acts after consultation with the Chief Justice of India (CJI). The Memorandum of Procedure (MoP) governs how proposals for transfer and appointment are initiated and considered within the consultation process. The MoP says transfers must be made in public interest—for better administration of justice across India. The MoP does not prescribe any timeline for transfers from one High Court to another.

Background and earlier position

The reply connected judge transfers and appointments to the wider constitutional scheme for judicial appointments. Key constitutional provisions for appointments are: Article 124 (appointment of Supreme Court judges). Article 217 (appointment of High Court judges). Article 224 (appointments related to additional and acting judges). The MoP described in the reply for appointments was prepared in 1998. The MoP is stated to be prepared pursuant to the Supreme Court’s decisions in: October 6, 1993: the “Second Judges case”. October 28, 1998: the “Third Judges case” (advisory opinion). The reply also mapped responsibilities between the Chief Justice of India and Chief Justice of the concerned High Court within the MoP for appointments. Initiation of Supreme Court judge appointment proposals vests with the CJI. Initiation of High Court judge appointment proposals vests with the Chief Justice of the concerned High Court, in consultation with two senior-most puisne Judges of that High Court.

What changed now (or what the reply clarified)

The Government’s written reply clarified how the MoP expects the consultation process to run for High Court judge transfers, and how the process for appointments is also tied into the collegium system. For transfer of High Court judges under Article 222, the MoP details were: Transfer proposal initiation: initiated by the CJI, in consultation with four senior-most puisne Judges of the Supreme Court. Views of High Courts: the CJI is expected to take into account views of the Chief Justice of the High Court from which the judge is to be transferred and the Chief Justice of the High Court to which the judge is to be transferred. Views of Supreme Court judges: the CJI also considers views of one or more Supreme Court judges who are in position to offer views. Personal factors: personal factors relating to the concerned judge, including the concerned Chief Justice, and the judge’s response to the proposal—especially preference of places—should be taken into account by the CJI and the first four puisne judges of the Supreme Court before arriving at a conclusion. Public interest: transfers must be made in public interest for promoting better administration of justice throughout the country. For appointments, the reply clarified the consultation and recommendation flow: High Courts must make recommendations at least 06 months before a vacancy occurs. For High Court appointments, views of the concerned State Government are obtained as per the MoP. Recommendations are considered along with other reports available to the Government in respect of the names under consideration. The High Court Collegium, State Government, and Government of India recommendations are forwarded to the Supreme Court Collegium (SCC) for advice. Appointment of judges in the higher judiciary is described as a continuous, integrated and collaborative process between the executive and judiciary, involving consultation and approval by constitutional authorities at State and Central level. Only names recommended by the SCC are appointed as judges of the High Courts. The reply also stated one procedural limit: No timeline is prescribed in the MoP for transfers of judges from one High Court to another.

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