Discover why High Court judges must retake the oath after transfer. Explained through constitutional provisions, Article 219, Article 222, and key Supreme Court rulings.
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NEW DELHI: In the Indian judicial system, the transfer of High Court judges from one state to another is not uncommon. But an interesting aspect of this process that often goes unnoticed is that judges are required to retake their oath of office every time they are transferred.
The question that might arise, after all, these judges are already serving in the judiciary. So, why is there a need for a fresh oath?
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What Does the Constitution Say?
Article 219 of the Indian Constitution explicitly states that:
“Every person appointed to be a Judge of a High Court shall, before he enters upon his office, make and subscribe before the Governor of the State, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule.”
This oath is not generic; it is tailored to the specific High Court to which the judge is appointed, as per the Third Schedule of the Constitution. So, when a judge is transferred from one High Court to another, they are not merely shifting locations; they are entering a new constitutional office.
Under Article 222, judges may be transferred by the President after consultation with the Chief Justice of India. However, Article 217(1)(c) clarifies a crucial detail: when a judge is transferred, they vacate their previous office. This means their judicial position in the earlier High Court ceases to exist for them, and a new tenure begins in the new High Court.
Supreme Court’s View on Retaking the Oath
This interpretation isn’t just theoretical; it has been upheld by the Supreme Court of India in landmark rulings such as:
Sankalchand Sheth v. Union of India:
In 1976, Justice Sankalchand H. Sheth was transferred from the Gujarat High Court to the Andhra Pradesh High Court without his consent. Although he complied, he challenged the transfer, arguing that Article 222(1) required his consent and proper consultation with the CJI.
The Supreme Court, however, upheld the President’s authority to transfer judges without consent or the CJI’s concurrence. For decades, this precedent stood, but the rise of the Collegium system shifted control of judicial transfers to the judiciary. Under the Memorandum of Procedure (MoP), the Collegium, led by the CJI, now holds primacy and must ensure transfers serve public interest and better administration of justice.
This framework was recently tested in the case of Justice Akil Kureshi. Despite the Collegium’s May 10 recommendation to appoint him Chief Justice of the Madhya Pradesh High Court, the Union delayed action for months. A PIL was filed by the Gujarat High Court Advocates Association (GHCAA), and the Law Ministry later suggested a different High Court posting.
The matter remains unresolved, reflecting the continuing shadow of the Sankalchand ruling over judicial transfers in India.
S.P. Gupta v. Union of India:
S.P. Gupta v. Union of India arose from concerns about the principle of separation of powers, questioning whether the executive held excessive influence over judicial appointments. The case challenged the existing system, arguing that the judiciary’s limited role in appointing judges to the Supreme Court and High Courts compromised its independence.
Key issues included the interpretation of “consultation” in Articles 124(2) and 217(1) of the Constitution, and whether judicial appointments were solely the President’s prerogative, guided by the Council of Ministers, without needing judicial concurrence.
The Supreme Court, by majority, ruled that “consultation” does not mean “concurrence,” thus upholding the President’s primacy in judicial appointments. While the judiciary’s views must be sought, the final decision rests with the executive. The Court maintained that this arrangement aligns with the Constitution and does not violate the principle of separation of powers, as judicial consultation serves as a safeguard.
This judgment reinforced the executive’s dominant role in judicial appointments, setting a precedent that would later be reconsidered in subsequent cases like the Second Judges Case, which shifted primacy to the judiciary.
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Since the adoption of the Constitution in 1950, this practice has been followed uniformly and without exception. Every transferred judge has been sworn in publicly by the Governor of the new state, or a duly appointed representative.
Even during politically turbulent times, such as the Emergency period (1975–77), the integrity of this constitutional convention was maintained.
Appointment of High Court Judges
Under Article 217 of the Indian Constitution, High Court judges are appointed by the President in consultation with the Chief Justice of India (CJI) and the Governor of the concerned state. For judges other than the Chief Justice, the Chief Justice of the High Court is also consulted.
The appointment process begins with the Chief Justice of the High Court, who, in consultation with the two senior-most judges of that court, recommends names to the Chief Minister. The Chief Minister forwards these to the Governor, who then sends them to the Union Law Minister.
The final decision rests with the Supreme Court Collegium, which comprises the CJI and the two senior-most judges. Notably, Chief Justices are usually appointed from outside the state to ensure impartiality. Additionally, Article 224A allows for the appointment of retired judges as ad-hoc judges with the President’s consent.
Supreme Court Collegium
The Collegium system, which governs the appointment and transfer of judges in India, is not established by the Constitution or any law but has evolved through Supreme Court judgments.
In the First Judges Case (1981), i.e., S.P. Gupta v. Union of India, the Court ruled that the executive had primacy in judicial appointments, and the Chief Justice of India’s (CJI) recommendation could be rejected for valid reasons. This gave the executive control over appointments for the next 12 years.
However, in the Second Judges Case (1993), i.e., Supreme Court Advocates-on-Record Association v. Union of India, the Supreme Court overturned this view, interpreting “consultation” as “concurrence” and introducing the Collegium system. It emphasized that the CJI’s opinion must be formed collectively with the two senior-most judges of the Supreme Court.
Later, in the Third Judges Case (1998), i.e., In Re Presidential Reference, the Collegium was expanded to include the CJI and four senior-most judges, particularly in matters involving High Court appointments and transfers.
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