When High Court judges in India are transferred from one state to another, they are required to retake their oath of office before assuming their new role. But why is this necessary, especially when the judge is already serving in the judiciary?
The answer lies in the Constitution of India, which treats each High Court judgeship as a distinct constitutional office. Article 219 mandates that “every person appointed to be a Judge of a High Court shall, before he enters upon his office, make and subscribe an oath…” The oath, as per the Third Schedule, is specific to the High Court the judge is appointed to—mentioning the name of the court itself.
When a judge is transferred under Article 222, they are considered to be entering a new office in a different High Court. Although it’s not a new appointment in the traditional sense, Article 217(1)(c) clarifies that the judge vacates their previous office upon such a transfer. Hence, taking a fresh oath under Article 219 is constitutionally mandatory.
The Supreme Court has affirmed this requirement in key rulings such as Sankalchand Sheth v. Union of India and S.P. Gupta v. Union of India, noting that while the judge remains part of the higher judiciary, the change in jurisdiction requires a formal reaffirmation of constitutional duties.
Historically, this practice has been uniformly followed since 1950, with each transferred judge being publicly sworn in by the Governor (or their appointee) of the new state. Even during politically sensitive times like the Emergency, the convention of fresh oath-taking remained intact.
In essence, the oath is not just a legal formality—it symbolizes the start of judicial responsibilities in a new constitutional role, ensuring allegiance to the Constitution and the rule of law across all states.
Author:
Dr. Rajat Rajan Singh
Advocate
