Article 222 of the Costitution of India with Case law
Article 222 of the Constitution of India
— Transfer of a Judge from one High Court to another
📜 Text of Article 222:
(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 is so transferred, he shall, during the period he serves in the transferee High Court, be entitled to such compensatory allowance as determined by Parliament by law and, until then, as specified by the President.
🧾 Essence of Article 222:
Authority: President of India
Consultation Required: Chief Justice of India (CJI)
Object: To allow flexibility in judicial administration, remove local bias, and ensure efficiency.
Not Applicable To: Chief Justice of a High Court (but can be appointed Chief Justice of another High Court under Article 217).
⚖️ Key Case Laws on Article 222:
🧑⚖️ 1. S.P. Gupta v. Union of India (1981)
Citation: AIR 1982 SC 149
Known as: First Judges Case
Held:
Consultation with the CJI does not mean concurrence.
The President is not bound by CJI's advice.
Upheld the validity of mass transfers of judges during the Emergency.
Impact: Criticized for reducing judicial independence.
🧑⚖️ 2. Supreme Court Advocates-on-Record Association v. Union of India (1993)
Citation: AIR 1994 SC 268
Known as: Second Judges Case
Held:
Consultation with CJI means concurrence.
The CJI must consult senior-most judges before giving opinion.
Transfer without consent of the judge is permissible but requires valid reasons.
Significance: Strengthened judicial primacy in appointments and transfers.
🧑⚖️ 3. Special Reference No. 1 of 1998 (Third Judges Case)
Citation: (1998) 7 SCC 739
Held:
CJI must consult a collegium of four senior-most judges.
Transfers must not appear as punitive or arbitrary.
Reinforced: Transfer must be based on objective criteria.
🧑⚖️ 4. Union of India v. Sankalchand Himmatlal Sheth (1977)
Citation: AIR 1977 SC 2328
Facts: Challenge to transfer of a Gujarat HC judge to Andhra Pradesh.
Held:
Transfer under Article 222 is valid if not punitive.
Consent not mandatory, but consultation with CJI is essential.
Laid down: Fairness and transparency in the process.
🔍 Key Principles from Case Law:
| Principle | Position |
|---|---|
| Consent of Judge Required? | ❌ Not mandatory |
| CJI's Role | ✅ Must be consulted; his opinion is binding post 2nd Judges Case |
| Can Transfer Be Challenged? | ✅ If it's punitive, politically motivated, or violates natural justice |
| Transfer Without Reason? | ❌ Not permissible; must have valid justification |
💡 Examples of Controversial Transfers:
Justice Jayant Patel (2017): Resigned after being transferred from Karnataka to Allahabad HC. No reasons were made public.
Justice Muralidhar (2020): Transfer from Delhi HC to Punjab & Haryana HC triggered public debate over transparency.
✅ Key Takeaways:
| Topic | Summary |
|---|---|
| Who can transfer a judge? | President of India |
| Whose advice is binding? | Chief Justice of India (after due consultation) |
| Consent of judge needed? | Not mandatory |
| Can it be challenged? | Yes, if mala fide, arbitrary, or punitive |
| Judicial independence | Protected through evolving jurisprudence via Judges Cases |
RELATED Blog
0 comments