The need for this independence becomes most important in cases where the State itself is one of the parties in the controversy. In such cases, in order that the Judges may administer justice freely, that is, without 'fear or favour', it is essential that their tenure should not depend upon the mere pleasure of the Government, but upon what is called 'good behavior'.1 "The security of tenure which the Judge enjoys is at bottom the most essential fact underlying the principle of independence. It results in recognition by the general public that the Judge has nothing to lose by doing what is right and nothing to gain by doing what is wrong. Il is found on the belief that a man cannot be relied upon an act rightly regardless of the personal consequences."2 As long as the tenure of judicial office dependent on royal pleasure, there was risk of the subservience of Judges to the Crown. To ensure that English Judges should not hold office at the pleasure of the Crown, the Act of Settlement, 1700 provided that they should hold office "quamdiu se hene gesserint" (during good behavior), but subject to a power of removal upon an address from both Houses of parliament. The misconduct for which he may he removed, by a solemn parliamentary process is rare and improbable; and no responsible person has suggested that a Judge should be removed because he was thorn in the side of government."3 The protection afforded Judges of Tribunals deriving their jurisdiction
1 Acl of Settlement, 1701, sec under An. 124(2) Past DENNING,
ROAD TO JUSTICE, 1955, pp. 14-15.
2 .JUSTICE AND ADMINISTRATION.
LAW by WILLIAM. ROUSUN,3rd lidn. At pp. 47.
3
from Art. Ill (Constitution of USA) includes life tenure with removability only for misconduct in office and the guarantee that judicial salaries may not be diminished during tenure in office.1 This is secured by the express provision in our Constitution that Judges of the Supreme Court [Art. 124(4)] or of a High Court Art. 217(1), Proviso (b)] shall not be removable except by an address by both Houses of Parliament to the President, passed by a special majority, and on the ground of 'proved misbehavior or incapacity' (see post). Apart from this procedure of 'joint address' which is a difficult one, a Judge of the superior Courts, in India, is guaranteed absolute security of tenure.
4.3.5 Transfers
The power to Transfer of a Judge from one High Court to another2 is to be exercised to sub serve the public interest and not by way of punishing a Judge who has fallen from the grace of the executive, or for inconvenient decisions.3
The question of transfer of Judges has been considered in Supreme Court Advocates-on-Record Association v. Union of India4 wherein it was reiterated that there is no requirement of prior consent of the Judge before his transfer under Art 222, hut the opinion of the Chief Justice of India has been given "not mere primacy" but determinative character in the transfer process and the process of transfer should be initiated by the Chief Justice of India alone. It was reiterated that the power of transfer could be exercised only "in public interest" and not to be "punitive" in nature. It was observed that any transfer in accordance with the recommendation^!' the Chief Justice of India cannot be treated as punitive or as an erosion in the independence of Judiciary. The court also elaborately gave how to express the opinion of the Chief Justice. The procedure to obtain the opinion of the Chief Justice of India was further explained in Special Reference No. 1 of 1998.5 It is now settled that the Chief Justice of India will recommend a transfer only "in public interest", i.e., for promoting better administration of justice throughout the country or at the request of the concerned Judge.
1 Constitutional InterpretationBYCRARR.
DUCAT,8th Edn. p. 38. Cited by Dr.D.D.Basu in Comentary
on Constitution vol V
2
Union of India v. Sankalchand Himatlal Seth ,(1978) 1 S.C.R 423
3 Gupta v. President of India, AIR 1982 SC 149
4 AIR 1994 SC 268 :
An order of transfer of a Judge of High Court can be challenged only by the Judge who is affected by the transfer and by no other person. Judicial review is entertained against the order of transfer only on limited grounds, i.e., transfer being made without the recommendation of Chief Justice of India.1
Since this Provision raised a great storm leading to the voluminous judgments in case, a discussion of this topic will be postponed [ii] A.I. 222,
In the formation of his opinion, the Chief Justice of India, "in the case of transfer of a Judge other than the Chief Justice is expected to take into account the "views of the Chief Justice of the High Court from which the Judge is to be transferred, any Judge of the Supreme Court whose opinion may be of significance in that case, as well as the views of at least one other senior Chief Justice of a High Court, or any other person whose views are considered relevant by the Chief Justice of India. The personal factors relating to the concerned Judge, and his response to the proposal, including his preference of places of transfer, should be taken into account by the Chief Justice of India before forming his final opinion objectively, on the available material, in the public interest for better administration of justice.
The continuing practice of having Acting Chief Justices for long periods; transferring permanent Chief Justices and replacing them with out of turn Acting Chief Justices for long periods; appointing more than one Chief Justice from the same High Court resulting in frustration of the legitimate expectation of Judges of some other High Courts commensurate with their seniority to be appointed Chief Justice in their turn, except in an extraordinary situation must be deprecated and avoided. Application of the policy has been quite often selective and it is essential to make it uniform to prevent any injustice.
It may be desirable to transfer in, advance the senior-most Judge due for appointment as Chief Justice to the High Court where he is likely to be appointed Chief Justice, to enable him to take over as Chief Justice as soon as the vacancy arises and, in the meantime, acquaint himself with the new High Court. This would ensure a smooth
transition without any gap in filling the “office of Chief Justice. In transfer of puisne Judges, parity in proportion of transferred Judges must be maintained between the High Courts, as far as possible.
The recommendations in the Report of the Arrears Committee (1989-90) mention certain factors to be kept in view while making transfers to avoid any hardship to the transferred Judges. These must be taken into account.