Article 222

Article 222 of the Constitution of India empowers the President of India to transfer a judge from one High Court to another, subject to the consultation with the Chief Justice of India (CJI). This provision plays a vital role in ensuring the flexibility, uniformity, and independence of the higher judiciary. While designed to strengthen the judicial system, it has also been a subject of debate concerning the potential influence of the executive on judicial transfers.

Constitutional Provision and Authority

Article 222(1) of the Constitution states that the President may, after consultation with the Chief Justice of India, transfer a judge from one High Court to any other High Court. The purpose of this provision is to facilitate the smooth functioning of the judiciary across the country and to enable administrative efficiency within the judicial system.
The consultation with the Chief Justice of India is a constitutional safeguard meant to prevent arbitrary transfers and to preserve the independence of the judiciary from executive interference. Although the President is the appointing and transferring authority, the advice tendered by the CJI carries significant weight, and the transfer is made only after due deliberation and consideration of all relevant factors.

Compensation for Transferred Judges

Clause (2) of Article 222 provides that a judge who is transferred from one High Court to another is entitled to receive a compensatory allowance in addition to his or her salary. This is intended to offset the financial and personal inconvenience caused by relocation, such as housing arrangements, family movement, and adjustments to new working conditions.
The amount of the allowance is to be determined by Parliament by law. In the absence of such legislation, the President is authorised to fix the allowance by executive order. This provision reflects the Constitution’s concern for the welfare and dignity of judges while maintaining administrative flexibility.

Historical Development and Purpose

Article 222 was incorporated in the Constitution to provide a mechanism for the transfer of High Court judges, ensuring administrative flexibility and mitigating regional or local biases in the judicial system. However, its application initially lacked a detailed legislative framework.
The Constitution (Fifteenth Amendment) Act, 1963, formally introduced a clause providing for the payment of compensatory allowances to judges upon transfer. The amendment aimed to promote judicial unity across India and prevent parochialism or the development of vested interests within specific regions.
The rationale for this provision includes:

• Promoting national integration within the judiciary.
• Ensuring uniform judicial standards across all states.
• Preventing the development of local or regional influence over judges.
• Allowing the judiciary to respond flexibly to administrative needs and workload variations among High Courts.

Judicial Interpretation and Case Law

The interpretation of Article 222 has evolved significantly through judicial pronouncements, particularly concerning the scope and meaning of the phrase “after consultation with the Chief Justice of India.”

• S.P. Gupta v. Union of India (1981): Known as the First Judges’ Case, this decision held that the consultation with the CJI was not binding on the President, giving the executive a dominant role in judicial transfers. This interpretation raised concerns about potential executive overreach.
• Supreme Court Advocates-on-Record Association v. Union of India (1993): The Second Judges’ Case reversed the earlier position, holding that the opinion of the CJI, formed collectively after consulting senior judges, would have primacy in such matters. The judgment established the collegium system, under which judicial transfers are decided by a group of senior judges led by the CJI.
• In Re: Special Reference No. 1 of 1998: This Third Judges’ Case reaffirmed the collegium system and clarified that the CJI’s opinion must be based on institutional consultation with the four senior-most judges of the Supreme Court, ensuring a collective decision rather than individual discretion.

These judgments collectively fortified the judiciary’s role in the transfer process and limited the executive’s influence, reinforcing the constitutional principle of judicial independence.

Significance of Article 222

The transfer provision under Article 222 serves several constitutional and administrative objectives:

• Judicial Independence: Ensures that judges are not confined to one region, reducing the risk of developing local or political affiliations.
• Administrative Flexibility: Enables the judiciary to balance caseloads and redistribute judges to High Courts with heavier workloads.
• Uniform Standards: Promotes consistency in judicial approach and interpretation of laws across states.
• Professional Exposure: Provides judges with broader experience and familiarity with diverse legal systems and social contexts across India.

At the same time, the power of transfer must be exercised with caution to avoid undermining the morale and autonomy of judges.

Related Constitutional Provisions

Article 222 functions alongside several other constitutional provisions that govern the appointment and service conditions of judges:

• Article 217: Pertains to the appointment, qualifications, and tenure of High Court judges.
• Article 218: Extends certain provisions related to the Supreme Court to High Courts.
• Article 221: Regulates the salaries, allowances, and pensions of High Court judges.
• Article 224: Provides for the appointment of additional and acting judges in High Courts.

Together, these provisions create a comprehensive framework for judicial service, ensuring that transfers, appointments, and financial security are all guided by constitutional principles.

Practical Implications and Administrative Use

Transfers under Article 222 may be carried out for several reasons:

• Administrative necessity, such as balancing the distribution of judges among High Courts.
• Disciplinary or ethical considerations, though such transfers must be based on legitimate grounds and proper consultation.
• Personal reasons, including requests made by judges themselves for family or health considerations.

While the constitutional intent behind transfers is positive, the process has occasionally faced criticism for being opaque or politically influenced. Allegations of punitive transfers have surfaced at times, leading to calls for greater transparency and clear criteria in the transfer process.

Ethical and Institutional Safeguards

To safeguard judicial independence, the consultation process under Article 222 has been strengthened by the collegium system, ensuring that decisions are based on collective judicial wisdom rather than executive preference.
The collegium’s recommendation to transfer a judge is usually based on administrative needs, workload balancing, or disciplinary concerns, and such decisions are communicated with confidentiality to protect judicial dignity.
The compensatory allowance further ensures that no judge suffers financial disadvantage due to transfer, maintaining fairness and respect for judicial office.

Contemporary Context and Debates

In modern India, the issue of judicial transfers continues to generate debate. Concerns are often raised about the lack of transparency in the collegium’s decisions, as well as the perceived absence of a written policy outlining the criteria for transfer.
Proposals have been made for:

• Establishing a Judicial Transfers Commission or a codified framework to ensure objectivity.
• Publishing basic reasons for transfers without compromising confidentiality.
• Strengthening mechanisms for consultation between the executive and judiciary.

Despite these debates, Article 222 remains an essential tool for maintaining the adaptability and integrity of India’s judiciary.