The Supreme Court in the case Ashwini Kumar Upadhyay v. Union of India And Anr observed and has clarified that the permission of it is not required for the High Courts to transfer Presiding officers of Special Courts dealing with cases pertaining to MPs or MLAs.
The bench comprising of CJI DY Chandrachud, Justice PS Narasimha, and Justice Manoj Misra was hearing the present plea wherein the said bench ensure that the administrative work of the High Courts does not suffer.
In the present case, the Supreme Court directed in August 2021 that the Presiding officers of the Special Courts involving prosecution of MPs or MLAs, shall not be transferred except with permission from the Apex Court.
However, several High Courts filed interlocutory applications seeking permission to transfer judicial officers due to administrative exigencies or on other grounds, in response to which it has been directed by the Supreme Court in the month of October 2022 that the same would not be necessary for the High Courts to seek prior permission of the Apex Court for transferring of judicial officers in cases where the transfers were being made in the normal course which is consequent upon the end of their tenure in a particular posting. Adding to it, it has been stated that if a transfer is caused for any other reason, the prior permission of the Supreme Court would be necessary in the matter.
The counsel, Senior Advocate Vijay Hansaria, the amicus curiae in the matter, informed the Supreme Court that there were many requests for the transfer of judicial officers occasioned by the condition of prior permission of the Apex Court before transferring.
The court in the case observed and has stated that the permission of the Supreme Court shall not be required for transfer of Presiding officers of Special Courts dealing with cases which pertains to MPs or MLAs by the High Court which being subject to due observance of the following conditions:
(i) The High Court concerned may transfer the Presiding officers of Special Courts i.e., the MPs or MLAs obtaining the approval of the Chief Justice of the High Court on the administrative side.
(ii) The Chief Justice while granting the permission shall ensure that some of the other judicial officer is posted in the vacancy which would be caused by the transfer so that the Special Court in charge of cases of MPs or MLAs is not being kept open.
(iii) The transfer made shall be permitted which being subject to the condition that there is no case pending for final judgment after the conclusion of the arguments in the trial.
