HC judges transfer under Article 222 — the President's power, compensatory allowance, the collegium's role, and the Constituent Assembly's patronage worry.
At a glance
Article 222 empowers the President to transfer a High Court judge to another High Court, with a compensatory allowance under Article 222(2).
Transfers are made on the recommendation of the Chief Justice of India through the collegium, after the NJAC (referred to in the amended Article 222) was struck down in 2015.
The Constituent Assembly itself warned that a transfer power could be misused as patronage or pressure against sitting judges.
HC judges transfer from one High Court to another is a power the Constitution vests in the President under Article 222. It is one of the more sensitive provisions governing the higher judiciary, because a transfer — unlike an appointment — can be read either as a routine administrative step or as a subtle form of pressure on a sitting judge, a concern the framers themselves debated at length.
The Provision — Article 222(1)
Article 222(1) empowers the President to transfer a Judge from one High Court to any other High Court in India. As originally enacted, this power was exercised on the President's own authority (in practice, on the advice of the Council of Ministers after consultation with the Chief Justice of India, a process later refined by the Supreme Court's own rulings on judicial appointments and transfers). The text of Article 222 was later amended to refer to a recommendation of the National Judicial Appointments Commission under Article 124A, following the Ninety-Ninth Constitutional Amendment Act, 2014. However, the Supreme Court struck down both the NJAC Act and the Ninety-Ninth Amendment in 2015, restoring the pre-existing collegium system. In current practice, therefore, a transfer of a High Court judge is made by the President on the recommendation of the Chief Justice of India, arrived at in consultation with the collegium of senior Supreme Court judges.
Compensatory Allowance — Article 222(2)
A judge who is transferred does not simply move at their own cost. Article 222(2), introduced by the Constitution (Fifteenth Amendment) Act, 1963, entitles a transferred judge to a compensatory allowance in addition to their salary for the period they serve in the new High Court. The amount of this allowance is to be determined by Parliament by law; until Parliament legislates on the matter, the President is empowered to fix it by order. This provision recognises that a transfer imposes real personal and financial costs on a judge — relocation, separation from family, and a change of jurisdiction — and ensures that these costs do not become, in themselves, informal punishment for the judge concerned.
The Constituent Assembly's Concern: Transfer as a Tool of Patronage
The power to transfer High Court judges was not accepted without objection while the Constitution was being framed. One member, Rohini Kumar Chaudhuri, argued that the judiciary was not sufficiently protected by the draft Constitution, and specifically criticised the provision allowing transfer of judges from one High Court to another as opening a new avenue of patronage for the government of the day. His argument was that a judge who feared being transferred to a distant or less desirable High Court — which he described, in the language of the debate, as being sent to a "penal province" — might be tempted to please the Governor or the President in order to avoid such a transfer, while a judge posted to a less preferred High Court might in turn seek favour to secure a transfer to a more desirable one. He pointed out that the pre-Constitution arrangement under the Government of India Act did not permit such transfers of High Court judges, and considered its introduction in the new Constitution a mistake that ought to be corrected.
This debate captures the essential tension in Article 222: transfer power is administratively necessary — for reasons ranging from national integration of the judiciary to addressing situations of friction within a High Court — but it also carries a risk of being misused to influence a judge's conduct, which is precisely why later judicial interpretation moved the effective decision-making away from the executive and towards the Chief Justice of India and the collegium.
Distinguishing Transfer of High Court Judges from Transfer of District Judges
Article 222 deals only with the transfer of High Court judges themselves. This is a distinct matter from the transfer and promotion of district judges, which the Constituent Assembly also debated separately — with members such as Pandit Kunzru arguing that High Courts, rather than the Governor, should control the posting and promotion of district judges to protect judicial independence at the subordinate level. That question falls under Article 233, which deals with appointment, posting and promotion of district judges by the Governor in consultation with the High Court, and is a separate constitutional mechanism from the Article 222 transfer of a High Court judge to another High Court.
UPSC Relevance
Prelims
- Article 222 empowers the President to transfer a High Court judge to any other High Court.
- Article 222(2), added by the Fifteenth Amendment Act, 1963, provides for a compensatory allowance to a transferred judge.
- The Ninety-Ninth Amendment's reference to the NJAC in Article 222 is inoperative after the Supreme Court struck down the NJAC in 2015.
Mains
- Examine the debate on whether the power to transfer High Court judges compromises judicial independence, with reference to the Constituent Assembly's objections and the post-1993 collegium practice.
- Distinguish the constitutional mechanism for transferring High Court judges (Article 222) from that for district judges (Article 233).
FAQ
Who has the power to transfer a High Court judge? The President, under Article 222, acting on the recommendation of the Chief Justice of India arrived at through the collegium system.
Is a transferred judge compensated for the transfer? Yes. Article 222(2) entitles the judge to a compensatory allowance in addition to salary, as determined by Parliament by law or, until then, fixed by the President.
Why did some Constituent Assembly members oppose the transfer power? They feared it could be used by the government as a form of patronage or pressure, transferring judges to less desirable High Courts to influence their conduct.
Does Article 222 apply to district judges as well? No. Article 222 applies only to High Court judges. Transfer, posting and promotion of district judges is governed separately by Article 233.
Quick Revision
- Article 222(1) — President transfers a High Court judge to another High Court.
- Article 222(2) (Fifteenth Amendment, 1963) — compensatory allowance for a transferred judge.
- NJAC reference in Article 222 (99th Amendment, 2014) is inoperative after the Supreme Court struck down NJAC in 2015; collegium recommends transfers.
- Constituent Assembly debate (Rohini Kumar Chaudhuri) flagged transfer power as a risk of executive patronage over judges.
- Article 233 (district judges) is a separate provision from Article 222 (High Court judges).
Sources
- The Constitution of India, Article 222 — https://legislative.gov.in/constitution-of-india
- Constituent Assembly Debates — https://www.constitutionofindia.net
Further Reference
For deeper reading on this topic and the wider polity syllabus, these standard works are recommended:
- M. Laxmikanth, Indian Polity (McGraw Hill) — the standard UPSC handbook.
- D.D. Basu, Introduction to the Constitution of India (LexisNexis) — authoritative constitutional-law treatment.
- The Constitution of India — Bare Act — the official text.
Constitutional provisions
President may transfer a judge from one High Court to any other High Court.
A transferred judge is entitled to a compensatory allowance in addition to salary, added by the Fifteenth Amendment Act, 1963.
Separate provision: appointment, posting and promotion of district judges by the Governor in consultation with the High Court.