The Constitution of India
Article 222
Transfer of a Judge from one High Court to another
(1) The President may, after consultation with the Chief Justice of India, transfer a Judge from one High Court to any other High Court.
(2) When a Judge has been or is so transferred, he shall, during the period he serves, after the commencement of the Constitution (Fifteenth Amendment) Act, 1963, as a Judge of the other High Court, be entitled to receive in addition to his salary such compensatory allowance as may be determined by Parliament by law and, until so determined, such compensatory allowance as the President may by order fix.
Why this exists
The framers wanted High Courts to be independent and fearless, including of local political or social pressures. Giving the Union government power to transfer judges could be misused to punish or intimidate judges who ruled against powerful interests, so the Constitution requires consultation with the Chief Justice of India as a safeguard. The compensatory allowance clause recognizes that a transfer uproots a judge's life and family, and compensates for that hardship.
How courts read it
The meaning of 'consultation' under Article 222 became one of the most contested questions in Indian constitutional law. In S.P. Gupta v. Union of India (1981), the 'Judges' Transfer Case,' the Supreme Court held that consultation did not mean concurrence, giving the executive significant discretion over transfers. This was widely criticized as weakening judicial independence, especially after judges were transferred during the Emergency period. The position shifted with Supreme Court Advocates-on-Record Association v. Union of India (1993), the Second Judges Case, where the Court held that the Chief Justice of India's opinion, formed through a collegium of senior judges, would effectively be binding, giving the judiciary primacy over transfer decisions. This was reaffirmed in the Third Judges Case (1998), which detailed the collegium process for both appointments and transfers.
Common misconceptions
- Myth: The President can transfer any judge whenever they want, with no checks.
Fact: Courts have held that the Chief Justice of India's opinion, formed through the collegium, effectively controls transfer decisions, limiting unilateral executive power. - Myth: Judges get a full new salary at the new High Court.
Fact: The judge keeps the same salary but receives an additional compensatory allowance, the amount set by Parliament or, until then, by presidential order.