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As the nation recalls, albeit distanced by time, the horrors of the Emergency, its many hues and colours need to be revisited. Even the judicial system, hitherto seen by certain sections of the Executive as a stumbling block, did, happily play along.
The hornet's nest was stirred with the transfer of Justice S Obul Reddy, Justice O Chinappa Reddy (OCR), and Justice C Kondaiah in 1976. Justice S Obul Reddy, the then Chief Justice, was sent marching to Gujarat in a mutual transfer with Justice BJ Divan, who became the Chief Justice in Andhra Pradesh. Justice OCR and Kondaiah were replaced by Justice JR Vimadalal and Justice SH Seth.
Other High Courts across the country — including those in Karnataka, Delhi, Rajasthan, Madhya Pradesh, Himachal Pradesh, Punjab, and Haryana — were similarly affected. The judicial system, partly due to the exigencies of the Emergency and largely due to convenience thereafter, continued to affect transfers of High Court judges. When ascent became affect is a moot point. Naive arguments, including the claim that transfer is merely an incidence of service, were thrown around.
It would be statistically revealing to see if any High Court has ever withheld consent for a transfer — emanating as it does invariably from the apex court. Chief Justice BR Gavai's term seems to suggest that the cat is now among the pigeons. It is necessary to understand that attributing motive to a judicial pronouncement could, and should, attract provisions of the Contempt of Courts Act. This, however, cannot — and should not — apply to the administrative decisions and actions of the judiciary.
A significant shift in appointments occurred in and out of the Telangana High Court recently. The Chief Justice of the Telangana High Court was transferred to the Bombay High court in January and, since then, the acting Chief Justice had been presiding over the court. The acting Chief Justice himself was transferred to the Calcutta High Court in the first half of May 2025, leaving a critical position vacant.
While matters stood thus, a subsequent transfer order of a High Court judge of the Telangana High Court to the Madras High Court raises significant questions as to compliance with the consultative procedure mandated by law.
The administrative wing and its “Delhi–Daulatabad Conundrum” have thrown up more questions than answers. According to the Memorandum of Procedure (MOP) — a product of the judicial exercise — vacancies are to be identified a year in advance, and the process of filling them initiated and completed within the time prescribed. This procedure, applicable to the Chief Justice, throws up yawning gaps where sudden transfers occur or when the “consultative process” is seeped in enigmatic secrecy.
Chief Justices are now required to have packed bags due to ‘Constitutional authorities.’ This singularly harms both the credibility of the selection process and the administration of justice. The process becomes even more intriguing when a certain senior judge is appointed as an acting Chief Justice and is soon thereafter shunted (euphemistically referred to as transferred) to another High Court, sometimes way below the collegium tier.
In the present jugglery, the acting Chief Justice of our High Court gets a kick down to position number three or four in Kolkata. Assuming the citizen is unconcerned with how such ups and downs affect the life of a judge, it still reflects poor managerial sense on the judicial side, which is otherwise trained in the “microscopically examined decision-making process.”
There is no constitutional bar on judicial examination of administrative decisions, even those of the apex court. However, there are wheels within wheels and certain unstated nuances that derail any such inquiry. The unhygienic vertical makes discussion impossible within the system.
Outside the system: the Executive is best advised to stay away, post-Emergency; the Legislative wing has its own arithmetic considerations. Social activists are silenced, senior advocates have systemic expectations and interests, and the Fourth Estate has the contempt sword eternally hanging on its head. Where, then, should the exercise be scrutinised?
To expect judicial review of the collegium is, therefore, a non-starter. The highly consultative process preceding the appointment of High Court judges is a guarantee — or at least appears to be a guarantee — of choosing men of integrity and efficiency. It is trite to state that the Bar has enough candidates who satisfy this twin test. The fact that they do not make it, while others do, is a poor reflection on the selection process.
Constant transfer of judges “for better administration of justice” or “regional balance” seriously questions the credibility of the system. Time to revisit?
Be that as it may, it’s a known secret that the collegium’s resolutions transferring High Court judges are synthetic, to say the least. For instance, if regional balance is a critical factor, how does the Supreme Court justify transferring two judges from the High Court of Telangana to the High Court of Tripura — thereby constituting half its entire existing strength?
The transfer of transferred Chief Justices is another saga in itself. When, decades ago, the Chief Justice of Kerala was transferred to Delhi, a newspaper — bolder than now — carried an article titled Transfer of Transferred Judges. To this day, the bluestockings of Delhi have shown little accountability regarding the credibility of the collegium system and its individual decisions.
The whistle-masters of the game of musical chairs are constantly at it, leaving the phrase “neither fear nor favour” as little more than a cliché.
In the past, the senior-most puisne judge of Telangana was first moved down fourteen places or more to another state, then appointed Chief Justice of a northern state, thereafter moved to another, and is now required to take charge in yet another High Court. Four states.
Before that, another judge (very senior) faced the same. Amidst protests by lawyers, he too was sent down the pecking order to another state, then made Chief Justice of another court, and now sits in the Supreme Court.
In another neighbouring state, an outsider came in as Chief Justice, then moved to a north-eastern state, and was later promoted to the apex court.
The current powers-that-be prioritising the return of transferred judges is a welcome development. Like it or not, every transfer in the higher judiciary carries an unstated stigma. It is not as if the Delhi durbar is unaware of the whispers and echoes surrounding such transfers. Yet, the brazen exercise of the power of transfer is unjust – a near-unconstitutional Damocles’ sword hanging over every sitting judge.
The moment you are transferred, you are marked. The return of those unceremoniously moved is a good sign.
Time has come for the apex court to halt all transfers until it has a policy subject to public scrutiny — not obscured by the semantics of the iron curtain.
The biblical MoP requires the Chief Justice to take into account the views of the Chief Justice of the High Court from which the judge is to be transferred, as well as the views of one or more Supreme Court judges in a position to offer informed advice.
In the disturbing case of a sitting judge of the Telangana High Court, two important legal issues arise: If the MoP is binding, was it followed? Was there consultation with the local judge at the Supreme Court?
Informed sources state that the “local judge” in the Supreme Court was not consulted. Is there a written consent of the said judge, or at least minutes?
Further, when it comes to consultation with the Chief Justice of the High Court, who was consulted, given that Telangana currently has no Chief Justice? The present incumbent has been acting Chief Justice since January 21, 2025, while the judge under transfer has been a sitting High Court judge for five years.
Was the consultation with the acting Chief Justice reduced to writing, if such a consultation even occurred? If so, it sounds paradoxical: if the process is procedurally sound, how does it result in a senior judge consenting to being transferred to a seemingly lower position, while judges junior in their parent state rise in seniority in the transferred state?
Curiously, for about a year now, all four senior-most judges of the Telangana High Court are from outside the state, and they constitute the collegium.
If the acting Chief Justice is good enough to “consult” for transfers, then how is it that he himself is being transferred? Which happened first — the transfer of the acting Chief Justice or his consent?
The whole process raises more questions than answers.
Assuming each transfer is bona fide, is the collegium — the Indian judiciary’s supposed bastion of accountability — above scrutiny?
It is instructive to recall the case of Justice SH Seth. Representing him, Senior Counsel HM Seervai argued that transferring High Court judges without their consent undermines judicial independence. To uphold the basic feature of that independence, he contended, the court must read consent into Article 222(1), even if not explicitly stated. Otherwise, judges would be obliged, consciously or unconsciously, to toe the line of the executive.
Justice YV Chandrachud (senior) warned that “the power to transfer a High Court judge is conferred by the Constitution in public interest and not for the purpose of providing the executive with a weapon to punish a judge who does not toe its line or who, for some reason or the other, has fallen from its grace.”
Justice Bhagwati echoed this, warning that the transfer of a High Court judge without their consent is a dangerous power vested in the executive — one that can injure the independence of the judiciary when judges refuse to toe the executive’s line. Judges would then function under the threat of transfer, affecting their ability to deliver justice without fear or favour.
The transfer of sixteen judges from one court to another was evidence enough of the failure of this mandate. To address this, Justice Bhagwati was of the view that the consent of the judge being transferred should be read into Article 222.
While the transfer of a sitting judge may serve an immediate public interest, over time, the harm it causes to judicial independence may outweigh any short-term benefit. Since then, more questions have arisen than answers.
The recent spate of judicial transfers in High Courts has raised considerable concerns about the independence of the judiciary — not so much from external interference, but from internal dynamics.
The need for transparency and accountability in the process of appointing judges is felt even more strongly now. Three major concerns emerge from recent trends. Firstly, transferring a judge deemed unfit or controversial to another High Court does not resolve the issue — it merely relocates it.
Secondly, as Justice PN Bhagwati noted, even if consent is taken into account, the value attached to that consent is questionable. Many judges have been transferred despite withholding it.
Thirdly, when a High Court judge is transferred for inconspicuous administrative reasons, and later re-transferred back to the same High Court following widespread uproar, it begs the question: what factors are at play?
Shifting judges back to their original position, alongside a set of new transfers, is like playing on the chess board with the rules of a snake and ladder. It screams of whims and fancies and does precious little to enhance the credibility of the judicial system.
Now more than ever, there is a need to align constitutional ideals with institutional practices reflected in administrative decisions. Transparency in appointments and transfers is the need of the hour. It requires a truly consultative process that addresses new issues emerging from the changing dynamics of governance and society.
Such reconsideration would further the nature of our living Constitution and keep it relevant in changing times. The constitutional mandate for an independent judiciary — one empowered to deliver justice without fear or favour — requires more than mere theorising. It requires active application and commitment by all organs of government and civil society.
Judicial independence is reflected not only in fearless judgments, but also in how judges are appointed, transferred, or removed. Without transparency and ethics in this process, the promise of justice is hollow.
To say the least, the current game of musical chairs leaves the onlooker muttering: “It is getting curiouser and curiouser!”
L Ravichander is a senior counsel at the Telangana High Court. Umme Ayman is an advocate at the Telangana High Court.
Views expressed are the authors’ own.