Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 90
PETITIONER:
UNION OF INDIA
Vs.
RESPONDENT:
SANKAL CHAND HIMATLAL SHETH AND ANR.
DATE OF JUDGMENT19/09/1977
BENCH:
CHANDRACHUD, Y.V.
BENCH:
CHANDRACHUD, Y.V.
BHAGWATI, P.N.
KRISHNAIYER, V.R.
UNTWALIA, N.L.
FAZALALI, SYED MURTAZA
CITATION:
1977 AIR 2328 1978 SCR (1) 423
1977 SCC (4) 193
CITATOR INFO :
R 1978 SC 694 (80,81,85,86)
R 1979 SC1109 (6)
RF 1981 SC 561 (50)
R 1981 SC1274 (11)
F 1982 SC 149 (28,29,46,51,53,106,107,108,10
R 1984 SC 399 (12)
R 1987 SC 331 (27)
R 1992 SC 96 (14)
ACT:
Practice and Procedure When there has been a challenge to
the constitutionality of an Act, compending, of the lis
cannot lull the Court into treating the subject non-issue-
Constitution of India, 1950-Art. 136-Duty of Court in an
appeal under.
Interpretation of statutes-Interpretation of a
Constitutional provision-Rule of harimonious construction,
essence of.
Interpretation of statutes-Meaning of words-Rule of
construction--Must be examined in its context and in the
sense which the legislature has in view.
Interpretation of statutes-Interpretation of a
constitutional code-Legislative History plus-Value of and
consultation by Courts.
Constitution ofIndia, 1950, Art. 222(1)-Interpretation
of Art. 222(1)-Whether- it implies"consent" of a judge
before he can be transferred by the President of India front
one High Court to another-Whether the transfer without his
consent unconstitutional.
Constitution of India, 1950, Art. 222(1)-Transfer of judge
front one High Court to another by the President of
India--Consent and basic material and minimum requirements
for consultation.
Constitution of India, 1950, Arts. 50, 217(1) and
222(1)--Scope and effect of the word "transfer" occurring
in the said Article.
Constitution of India, 1950, Article 222(1)-Whether the
transfer of a High Court Judge from one High Court to
another without his consent is in violation of the
principles of natural justice.
Bias, doctrine of-Objection by the Union of India to the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 90
hearing, by a special Bench, of the Writ Petition by High
Court Judge against the order of his transfer to another
High Court-Propriety of the objections.
HEADNOTE:
On May 27, 1976, the President of India issued a
notification to the effect "In exercise of the powers
conferred by clause (1) of article 222 of the Constitution
of India, the President after consultation with the Chief
Justice of India is pleased to transfer Shri Justice
Sankalchand Himatlal Sheth, Judge of High Court of Gujarat
as judge of High Court of Andhra Pradesh with effect from
the date he assumes charge of his office." The notification
was issued by the Government of India in its Ministry of
Law, Justice and Company Affairs, Department of Justice.
Mr. Justice Sheth complied with the order of transfer and
assumed charge of his office as a judge of Andhra Pradesh
High Court, but before doing so, he filed a Writ Petition
No. 911 of 1977 in the Gujarat High Court challenging the
constitutional validity of the notification on the following
grounds:
1. The order was passed without his
consent; such consent must be necessarily
implied under Article 222(1) of the
Constitution and, therefore, the transfer of a
judge from one High Court to another High
Court without his consent is unconstitutional;
2. The order was passed in breach of the
assurance given on behalf of the Government of
India by the then ’.Law Minister
424
Shri A. K. Sen, while moving the Constitution
(15th Amendment) Act, 1963 and in the Lok
Sabha that "So far as the High Court Judges
were concerned, they should not be transferred
excepting by consent". Mr. Sheth having
accepted the Judgeship of Gujarat High Court
on April 23, 1969 on the faith of Law
Minister’s assurance, the Government of India
was bound by that assurance on the doctrine of
promissory estoppel.
3. The order of transfer mitigated against
public interest the power conferred by Art.
222(1) was conditioned by existence
and requirement of public interest and since
the impugned transfer was not shown to have
been made in public interest, it was ultra
vires, and
4. The order was passed without effective
consultation with the Chief Justice of India.
’Consultation’ under article 222(1) means
’effective consultation’ and since the
precondition of article 222(1) that no
transfer can be made without such con-
sultation, was not fulfilled, the order was
bad and of no-effect.
The Writ Petition was heard by a special Bench of three
Judges. They unanimously rejected the challenge to the
order of transfer on the promissory estoppel. As regards
the ground of consent J. B. Mehta Desai JJ. held that the
order was not void for want of Mr. Sheth’s his transfer. A.
D. Desai J. however, took the view that the judge Court
cannot be transferred without his consent. As to the ground
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 90
of consultation with the Chief Justice of India, they
unanimously held that no effective consultation with the
Chief Justice of India, though they this conclusion by
different processes of reasoning. A preliminary objection
raised by the Union of India to the three particular Judges
hearing the matter on the ground of bias was overruled. The
High Court has granted to the Union of India a certificate
under Article 132 and 133(1) of the Constitution of India to
appeal to this Court.
The objection of bias was given up by the appellant and the
contention as regards promissory estopped was not pressed by
the Respondent petitioner in this appeal. The Respondent
petitioner, however, contended (i) that the power conferred
by Art. 222(1) is, by necessary implication, subject to the
precondition that the Judge, who is proposed to be
transferred must consent to his transfer, the fundamental
basis being, that judicial independence can be undermined by
vesting the power of transferring a judge in the executive
and, therefore, the transfer of High Court Judges from one
High Court to another without their consent is calculated to
undermine the independence of the High Court Judges and (ii)
that, in order to uphold the independence of the judiciary
which is a basic feature of the Constitution, the Court has
not only the power but it is its plain duty to read into
Art. 222(1) a limitation which is not to be found on the
face of that Article. Elaborating the contention it was
argued
(1) The transfer of a Judge, in many a case,
inflicts personal injuries on him. For
example, a Judge transferred from one High
Court to another may have to maintain two
establishments; if his wife or unmarried
daughter is gainfully employed, she may be
required to give up the employment; the
education of his children may suffer; and
above all, the transfer of a permanent Judge
disables him from practicing not only in the
High Court to which he was initially appointed
but in the High Court or High Courts to which
he may be subsequently transferred. To
empower the executive to inflict these
injuries on a Judge would gravely undermine
the independence of the judiciary because,
human nature being what it is, a large number
of Judges would, consciously or unconsciously,
be induced to fall in line with the wishes and
policies of the executive government.
(2) It would be surprising anomaly that the
transfer of subordinate judges, as decided by
the Supreme Court in several cases, should be
exclusively within the control of the High
Court in
425
order to ensure that those judges are immune
from the exercise of improper pressures by the
executive, whereas High Court Judges
themselves, for whose independence the
Constitution has made copious and elaborate
provisions, should be left to the mercy of the
executive.
(3) The requirement of article 222(1) that
the President ,trust consult the Chief Justice
of India before transferring a Judge does not
answer the problem because, even though
consultation with the Chief Justice is not a
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 90
matter of formality, the final word, in
practice, always rests-with the executive.
(4) Assuming that the President’s power to
transfer a High Court judge would be reduced
to a dead letter if that power is made to
depend upon the Judge’s consent, if the choice
lay between depriving numerous articles of the
Constitution designed to secure
the independence of the judiciary of their
content and, on the other hand, depriving
article 222(1) of its practical
effect, the second alternative ought to and
must be preferred.
(5) The oath which a Judge of the High Court
has to take, as prescribed by the Third
Schedule, Clause VIII of the Constitution,
that he will perform the duties of his office
"without fear or favour", an expression which
was absent in the form of the oath prescribed
by Schedule IV to the Government of India Act,
1935, will not only become meaningless but
will be impossible to fulfil
unless it was placed out of the power of the
legislature or the executive to secure favors
from a Judge by putting him in fear of the
injury which can easily be inflicted upon him
by transferring him from one High Court to
another.
(6) Even assuming that transfers of High
Court Judges are necessary in the interests of
national integration, it cannot be ignored
that independence of the High Court Judges is
the highest public interest, particularly in a
federal or quasi-federal Constitution like
ours and if there is a conflict of interest,
the high principle of the independence of the
judiciary must prevail over the amorphous
concept of national integration.
(7) The transfer of a Judge from one High
Court to another is, subject to incidents like
continuity of service, in the nature of a
fresh appointment to the other Court. Since a
person can. not be appointed to a post without
his consent, article 222(1) should be read as
if it contains the words "with his consent"
after the words "transfer a Judge and before
the words "from one High Court to any other
High Court". In other words, "transfer",
within the meaning of article 222(1)
means a consensual, not a compulsive shifting
of a Judge from one High Court to another.
(8) It is of the essence of judicial service
that there is no master-and-servant
relationship between a Judge and the
Government. The Judge cannot be asked by the
Government to decide a case in any particular
way. Even the higher Court, generally, only
corrects the Judge of the lower court-It does
not command him. Therefore, "transfer" in
article 222(1) does not have the same colour
or content as in other services. The
concept of ’transfer" under that article is
totally different, a concept which must be
construed harmoniously with the various
constitutional provisions which are enacted in
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 90
order to secure judicial independence. A non-
consensual transfer will provide the executive
with a potent weapon to punish the Judge who
does not toe its line and thereby destroy the
independence of the judiciary.
426
(9) Of no word can one say that it is clear
and unambiguous unless one reads the whole
document in which that word occurs.
"Transfer", in the context of the entire
constitutional scheme becomes a word of
doubtful import. If a vital constitutional
principle is going to be violated by putting a
wider construction on that expression, it must
receive a narrow, restricted meaning; and
lastly.
(10)Such a narrow interpretation will not
deprive the article of its practical efficacy
or reduce it to a dead letter because, as a
matter of fact, nearly 25 judges were
transferred with their consent since the
inception of the Constitution. It was, only
during the emergency, when every safeguard of
liberty had gone, that mass transfers of High
Court Judges were resorted to by the executive
on grounds unconnected with the requirements
of public interest.
The appellant union did not dispute that the greatest care
ought to be taken to preserve the independence of the
judiciary which the constitution so copiously protects. The
appellant, however, contended : (i) that the word ’transfer"
which occurs in Art. 222(1) is not an expression of
ambiguous import, that there is no justification for reading
the precondition of "consent" in the article which is not to
be found therein, and then even assuming for the purposes of
argument that a judge has to take a fresh oath before taking
office in the High Court to which he is transferred,
"transfer" doesn’t involve a fresh appointment and as such
the consent of the judge to his transfer from one High Court
to another is not necessary and (ii) the consultation with
the Chief Justice can be adequate safeguard against
arbitrary transfers.
At the end of the argument on August 26, 1977, the appellant
and Respondent arrived at a settlement viz.
"On the facts and circumstances on record the
present government does not consider that
there was any justification for transferring
Justice Sheth from Gujarat High Court and
propose to transfer him back to that High
Court. On this Statement being made by the
learned Attorney-General Mr. Seervai, counsel
for Respondent No. 1 (Justice S. E. Sheth)
withdraws the Writ Petition with leave of the
Court".
Disposing the appeal by certificate in terms of that
settlement, the Court
HELD:
Per majority (P. N, Bhagwati and N. L. Untwalia, JJ,
contra)
1.There is no need or justification in order to uphold
and protect the independence of the judiciary for construing
Art. 222(1) to mean that a Judge cannot be transferred from
one High Court to another without his consent. The power to
transfers High Court Judge is conferred by the constitution
in public interest and can be exercised in public interest
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 90
only.
2.Art. 222(1) casts an absolute obligation on the
President to consult the Chief Justice of India before
transferring a Judge from one High Court to another. This
is in the nature of a condition precedent to the actual
transfer of the Judge. Consultation within the meaning of
Art. 222(1) means full and effective, not formal or
unproductive consultation. [452 E-G]
Per Chandrachud, J.
1.The normal rule of interpretation is that the words
used by the Legislators are generally a safe-guide to their
intention. Where the statute’s meaning is clear and
explicit, words cannot be Interpolated. What is true of the
interpretation of an ordinary statute is not any the less
true in the case of a constitutional provision and the same
rule applies equally to both. But, if the words of an
instrument are ambiguous in the sense that they can
reasonably
4 2 7
bear more than one meaning, that is to say, if the words arc
semantically ambiguous, or if a provision if read literally,
is patently incompatible with the other provisions of that
instrument, the Court would be justified in construing the
words in an ordinary manner which will make the particular
provision purposeful. If the provision is clear and
explicit it cannot be reduced to a nullity by reading into
it a meaning which it does not carry. That in essence is
the rule of harmonious construction. [441 B-D]
Home Building, and Loan Association v. Blaisdell 78 L. Edn.
413 (1934); Griswold v. Connecticut 14 L. Edn 2d, 510
(1965), Massachusetts S. & Insurance Co. (1956) 352 U.S. 128
(at p. 138); West Minister Bank Ltd. v. Zang (1966) A.C. 182
quoted with approval; S. Narayanaswami v. G. Panneerselyam
A.I.R. 1972 S.C. 2284 & 2290 Followed; M. Pentiah v.
Veeramallappa A.I.R. 1961 S.C. 1107 (at p. 1115) Applied;
Seaford Court Estates Ltd. v. Asher 1949 (2) All E.R. 155
(at p. 164) Inapplicable.
2.There is no need for justification in order to uphold
and protect the independence of judiciary for construing
Art. 222(1) to mean that the judge cannot be transferred
from one High Court to another with his consent. 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. The extraordinary power which
the Constitution has conferred on the President by Art.
222(1) cannot be exercised in a manner which is calculated
to defeat or destroy in one stroke the object and purpose of
the various provisions conceived with such care to insulate
the judiciary from the influence and pressures of the
executive. [444 C-D, E]
3.Once it is appreciated that a High Court Judge can be
transferred on the ground of public interest only the
apprehension that the executive may use the power of
transfer is for its own ulterior ends and thereby interfere
with the independence of judiciary loses its force. The
hardship, embarrassment or inconvenience resulting to a
judge by reason of his being compelled to become a litigant
in his own court cannot justify the addition of words to an
Article of the Constitution making his consent a pre-
condition of his transfer. [445 A, B]
4.It is needless in a broad sense to cut down the width
of the words used in Art. 222(1) by making the power of
transfer dependent on the consent of the, judge himself. It
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 90
is also needless in order to effectuate the object of the
other constitutional provisions to read any such limitation
into that Article. The transfer of a High Court Judge
without his consent will not damage or destroy the
provisions contained in the Constitution for preserving the
independence of the judiciary. [.446 E-H. 447 A]
R.M. D. Chamarbaugwala v. Union of India, [1957] S.C.R.
(930 at 936): Attorney General v. Prince Ernest Augustus of
Hanover, [1957] A.C. 436, 460 61; The River Wear
Commissioners v. William Adamson & Ors. 1876-7AC 743 (at
764, 767) Explained.
5.The fact that a judge who is transferred to another
High Court has to take a fresh oath before he assumes the
charge of his office as a judge of the High Court to which
he is transferred does not support the argument that he
enters upon a new office as a result of a fresh appointment.
The simple fact is that the judge is transferred to another
High Court, not appointed once over again as a Judge of the
High Court or even as a judge of the High Court to which he
is transferred. The Government of India Act did not contain
any provision for the transfer of a judge. That is why it
provided that the office of a judge shall be vacated either
on the judge being appointed to be a judge of the Federal
Court or on being appointed as a judge of another High
Court. [447 G-H, 448 A, G]
M. P. V. Sundaramier v. State of Andhra Pradesh [1958] SCR
1422 (at p.1478). Followed.
6. Clause (c) of Art. 217, itself makes a distinction
between appointment and transfer. They connote two
distinct concepts and one is not to be con-
42 8
fused with the other. The technical rules of procedure
governing service conditions cannot affect the
interpretation of a substantive provision like the one
contained in article 222(1) of the Constitution. [449 C, H,
450 A]
7.Whatever measures are required to be taken in order to
achieve national integration would be in public interest.
Whether it is necessary to transfer judges from one High
Court to another in the interest of national integration is
a moot point. But that is a policy matter with which Courts
are not concerned directly. Considering the great
inconvenience, hardship and possibly a slur which a transfer
from one High Court to another involves, the better view
would be to leave the judges untouched and take other
measures to achieve that purpose. [450 B-C]
Observation.-If at all on mature and objective appraisal of
the situation it is still felt that there should be a fair
sprinkling in the High Court judiciary of persons to be
belonging to other States, that object can be more easily
and effectively attained by making appointments of outsiders
initially. [450 C-D]
8.Judges of the High Court owe their appointment to the
Constitution and hold a position of privilege under it.
There is a fundamental distinction in the master and the
servant relationship as is generally understood and the
relationship between the Government and the High Court
Judge. The judges of the High Court are not the Government
servants in the ordinary signification of that expression.
[450 H, 451 C]
9.In fact, that is why the Government cannot on its own,
take a unilateraldecision in regard to the appointment
and transfer of High Court. Judges.[451 D]
10.Article 222(1) is in substance worded in similar terms
as the 1st proviso to Article 124(2) and Art. 217(1). It
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 90
casts an absolute obligation on the President to consult the
Chief Justice of India before transferring a Judge from one
High Court to another. That is in the nature of a condition
precedent to the actual transfer of the Judge. In other
words the transfer of a High Court Judge to another High
Court can not become effective unless the Chief Justice of
India is consulted by the President on behalf of the
proposed transfer. Indeed, it is euphemistic to talk in
terms of effectiveness, because the transfer of a High Court
Judge to another High Court is unconstitutional unless
before transferring the Judge, the President consults the
Chief Justice of India. [452 E-G]
11.While consulting the Chief Justice the President must
make the relevant data available, to him on the basis of
which he can offer to the President the benefit of his
considered opinion. If the facts necessary to arrive at a
proper conclusion are not made available to the Chief
Justice, he must ask for them because in casting on the
President the obligation to consult the Chief Justice the
Constitution at the same time must be taken to have imposed
a duty on the Chief Justice of India to express his opinion
and nothing less than a full consideration of the matter on
which he is entitled to be consulted. The fulfillment by
the President of his constitutional obligation to place full
facts before the Chief Justice and the performance by the
latter of the duty to elicit facts which are necessary to
arrive at a proper conclusion are parts of the same process
and are complementary to each other. The faithful
observance of these may well earn a handsome dividend useful
to the administration of justice. Consultation within the
meaning of Article 222(1), therefore, means full and
effective, not formal or unproductive, consultation. [453 D-
F]
12.Deliberation is the quintessence of consultation. That
implies that each individual case must be considered
separately on the basis of its own facts. Policy transfers
on a wholesome basis which leave no scope for considering
the facts of each particular case and which are influenced
by one-sided governmental considerations ire outside the
contemplation of our constitution.[454 A-B]
Rolls v. Minister of Town and Country Planning (1948) 1 All
E.R. 13 C.A. and Fletcher v. Minister of Town and Country
Planning (1947) 1 All F.R. 946, referred to.
42 9
R. Pushpam v. State of Madras, A.I.R. 1953 Mad 392 Approved;
Chandramouleshwar Prasad v. Patna High Court [1970] 2 SCR
666, Applied.
13.After an effective consultation with the Chief Justice
of India, it is open to the President to arrive at a proper
decision of the question whether a Judge should be
transferred to another High Court because, what the Consti-
tution requires is consultation with the Chief Justice, not
his concurrence with ,,he proposed transfer. But by and
large, the opinion of the Chief Justice of India should be
accepted by the Government of India. The Court will be
entitled to examine if any other extraneous circumstances
have entered into the verdict of the executive if it departs
from the counsel given by the Chief Justice of India. [455
A-B]
Shamsher Singh v. State of Punjab, [1975] 1 SCR [A.I.R. 1974
SC. 2192] Reiterated & followed.
14.Article 222(1) postulates fair play and contains built-
in safeguards in the interests of reasonableness. In the
first place, the power to transfer a High Court Judge can be
exercised in public interest only. Secondly, the President
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 90
is under an obligation to consult the Chief Justice of India
which means and requires that all the relevant facts must be
placed before the Chief Justice. Thirdly, the Chief Justice
owes a corresponding duty, both to the President and to the
Judge who is proposed to be transferred, that he shall
consider every relevant fact before he tenders his opinion
to the President. In the discharge of this constitutional
obligation the Chief Justice would be within his rights, and
indeed it is his duty whenever necessary to elicit and
ascertain further facts either directly from the judge
concerned or from other reliable sources. The executive
cannot and ought not to establish rapport with the judges
which is the function and privilege of the Chief Justice.
In substance and effect, therefore, the judge concerned
cannot have reason to complain of Arbitrariness or unfair
play, if the due procedure is followed. [456 B-D]
15.Consideration of the violation of the principles of
Natural Justice for the purposes of validation of a transfer
is out of place in the scheme of Art. 221(1). [456 D-E]
Rex v. University of Cambridge (1723) 1 Stn 557; Ridge v.
Baldwin 1964 A.C. 40; State of Orissa v. Dr. (Miss) Binapani
Dei A.I.R. 1967 SC 1269; A. K. Kraipak v. Union of India,
A.I.R. 1970 S.C. 150, referred to.
Per Bhagwati J.
1.When questions of great constitutional importance have
been raised affecting the independence of the judiciary and
argued with great passion and fervour in an appeal under
Art. 136 of the Constitution, the Court ought to express its
opinion on them, notwithstanding the fact that the appeal is
disposed of in terms of the agreed formula arrived at
between the parties at the close of the arguments. [457 D-E]
2.Where the language of an enactment is plain and clear
upon its face and by itself susceptible to only one meaning,
then ordinarily that meaning would have to be given by the
court. The words of a statute must be understood in the
same sense which the Legislature has in view and their
meaning must be found not so much in a strictly grammatical
or etymological propriety of language nor in its popular use
as in the subject or the occasion on which they are used and
the object to be attained. The words used in a statute
cannot be road in isolation; their colour and content are
derived from their context and, therefore, every word in a
statute must be examined in its context. Context means in
its widest sense in not only other enacting provisions of
the same statute but its preamble the existing state of the
law, other statutes in pari materia and the mischief
which .... the statute was intended to remedy." The context
is of the greatest importance in the interpretation of the
words used in a statute. [467 E-H]
430
Town v. Eisner, 245 U.S. 418, Helvering v. Gregory 69 F.(2)d
809; Heydon’s case (1584) 3 W. Rep. 16; 76 ER 637; River
Wear Commissioners v. Adamson (1876-77) App. Cs 743 at 764
Referred to.
3.The power to transfer a Judge from one High Court to
another under Art. 222(1) clause (1) can be exercised only
in public interest and it would be gross abuse of power to
displace him from his High Court and transfer him to another
High Court by way of punishment because he has decided cases
against the Government. It is a power conferred on the
President to be exercised in furtherance of public interest
and not by way of victimisation for inconvenient decisions
given by a High Court Judge. [460 F-G]
HELD (Contra)
4.The transfer of a judge may be "consensual" i.e. with
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 90
consent or compulsory i.e., without consent, and the word
"transfer" according to its plain natural meaning would
include both kinds of transfer. Having regard to manifest
intent of the constitution-makers to secure the independence
of the superior judiciary and the context and the setting of
the provision in which the word "transfer" occurs should be
interpreted by giving a narrower meaning limited only to
consensual transfer. Two weighty reasons why the more
limited meaning should be preferred and transfer should be
confined to consensual transfer are : (1) the transfer of a
judge from one High Court to another would ordinarily
inflict personal injuries on him and (ii) the transfer would
disable him from practicing not only in the High Court to
which he was originally appointed, but also in the High
Court to which he is transferred, so that repeated transfers
might prevent him from practicing in a number of High Courts
after his retirement. [468 F-H, 469 D]
Shamsher Singh v. State of Punjab [1975] 1 SCR 874 Applied;
State of West Bengal & Anr. v. Nripendrnath, Bagchi [1966] 1
SCR 77 1; State of Assam v. Ranga Mohmmed & Ors. [1967] 1
SCR 54 referred to.
5.On the terms of Art. 222, clause (1), the power of
transfer is conferred on the President, which means in
effect and substance the executive, since the President
cannot act save in accordance with the aid and advice of the
Council of Ministers. If on a proper construction of clause
(1) of Art. 222, the power of transfer could be exercised by
the executive and the High Court Judge could be transferred
without his consent, it would be a highly dangerous power.
[469 G-H, 470 A]
6.It is no doubt true that the words "without his
consent" are not to be found in clause (1) of Art. 222, but
the word "transfer" which is used there is a neutral word
which can mean consensual as well as compulsory transfer and
if the high and noble purpose of the Constitution to secure
the independence of the superior judiciary by insulating it
from all forms of executive control or interference is to be
achieved , the word "transfer" must be read in the limited
sense of consensual transfer. [472 D-E]
Massachusatts S. Insurance Co. v. U.S. [1956] 352 U.S. 128
Referred to.
State of Assam v. Ranga Mohammad and Ors. [1967] 1 S.C.R.
454, Followed.
7.When a judge is transferred to another High Court, he
has to make and subscribe a fresh oath of affirmation before
the Governor of the State to which he is transferred, before
he can enter upon the office of a judge of that High Court.
Such appointment would not become effective unless the judge
who is appointed makes and subscribes in oath or
affirmation before the Governor. And that would plainly be
a matter within the volition of the judge. It is.
therefore, obvious that the volition of the judge who is
transferred is essential for making the transfer effective
and there can be no transfer of a judge of a High Court
without his consent. [474 F-H]
8.It is true that there might be some cases where the
dictates of public interest might require transfer of a
judge from one High Court to another, but such cases by
their very nature would be few and far between. It would
not
431
be correct, on account of a few such cases, to concede power
in the executive to transfer a High Court Judge without his
consent which would impinge on the independence of the
judiciary. [475 H, 476 A]
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 90
9.The transfer of an undesirable Judge may secure public
interest and his continued presence in the Court from where
he is to be transferred may be an evil, but it is necessary
to put up with that evil in order to secure the longer good
which flows from the independence of the Judiciary. The
public interest in the independence of the judiciary must,
therefore, clearly prevail and a construction which
subserves this higher public interest mast be accepted [476
C-D]
Don John Francis Douglas Liyanange & Ors. v. The Queen
[1959] 1 A.C. 259 Applied.
(Concurring with Iyer, J.)
HELD:
10.According to the plain natural meaning of the words
used in clause (1) of Art. 222, it does appear that there is
a limitation on the exercise of the power of the President
to transfer a judge from one High Court to another and it is
that there must be previous consultation with the Chief
Justice of India. Unless there is previous consultation
with the Chief Justice of India, the exercise of the power
of transfer would be invalid. [467 C-D, 477 E]
11.Art. 50 has been described as "the conscience of the
Constitution" which embodies the social philosophy of the
Constitution and its basic underpinnings and values and it
plainly reveals, without any scope for doubt or debate, the
intent of the Constitution-makers to immunise the judiciary
from any form of executive control or interference. [465 E-
F]
Per Iyer J. (On behalf of Fazal Ali J. and himself).
1.Compounding of the lis cannot lull the court into
treating the subject of "transfer" of Judges under Art. 222,
a non-issue. This court has no crystal ball to foretell,
nor radar to detect the possible interference with the
judiciary by the current or later Council of Ministers. Not
to decide the issues squarely raised in this appeal merely
because of the appellant and the 1st respondent, having
exchanged assurances, if any, is to leave the jural area in
twilight with lamp in hand. Indeed the issues of semantics
and modalities raised in respect of Art. 222 and the fair
play implied in its mechanics, where orders constitutionally
draped, but challenged as expression of executive obliquely
survive even after the exit of this appears [479 B-C, 480 A-
B]
The highest court with constitutional authority to declare
the law cannot shrink from its obligation because the lis
which has activised its jurisdiction has justly been
adjusted. Moreover full debate at the bar must be followed
by fair judicative declaration. [503 G-H]
Don John Francis Douglas Liyanange v. The Queen, [1967] 1
A.C. 259, Followed.
2.Statutory interpretation of one clause may, in a sense,
affect the fasciculus of "judicial" clauses in the various
parts of the constitution. Preceding to decide a
constitutional clause in an organic code, juristic technique
has to be perceptive, spacious, creative, not narrowly
grammatical, lexicographically podantic or traditionally
blinkered. [483 A-B, C]
3.Legislative history plus, within circumspect limits, may
be consulted by courtsto resolve ambiguities, warning
themselves that the easy abuses of legislative history and
like matrix material may lead to the vice of occult
uncertainty and interesting of legislative power from where
it belongs. While understanding and interpreting a statute,
a fortiori a constitutional code, the roots of the past, the
foilage of the present and the seeds of the future must be
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 90
within the ken, of the activist judge. [487 B-C, F]
43 2
While it is true that judicial interpretation should not be
imprisoned in verbalism and words lose their thrust when
read in vacuo, the Court must search for a reliable
scientific method of discovery rather than the speculative
quest for the spirit of the statutes and the cross-thoughts
from legislator’s lips or Law Commission’s pens. They edify
but are not edictal. [488 B]
When the clauses of a Constitution to be construed are so
cardinal as to affect the basic structure of the national
charter viz. the independence of judiciary, to dissect a
constitutional provision meticulously as if it were a
cadaver is to miss the life of the charter. To change the
metaphor, then the arrow hits a mark "the archer never
meant". Words used designedly by trained draftsmen and
authenticated by purposeful legislators must possess a
mandate.[487 B 489 E]
Attorney General v. Prince Ernest Augustus of Hanover,
[1957] A.C. 436 at 461; Pine Hill Coal Co. v. United States,
259 U.S. 191, 196; River Wear Commissioners v. Adamson, 2
App. Court 743 HL 1877; Schegman Bros V. Calvert Distillers
Corpn. 341, U.S. p. 384 395-397; Hertton v. Phillips 45 Del
156-70 A 2d 15 (1949); A. P. Green Export Co. v. United
States 285 F. 2d 383, 386, Town of Menomines v. Skubits 53
Wis. 2d 430, 437, Quoted with approval, State of Mysore v.
R. V. Bidap, [1974] 3 S.C.C. 337; Datatraya Govind Mahajan
v. State of Maharashtra, [1977] 2 S.C.C. 548 referred to.
4.To rewrite the Constitution by the art of construction,
passionately impelledby contemporary events, is unwittingly
to distort the judicature scheme our founders planned with
thoughtful care and inset into words what plain English and
plainer context cannot sustain. Ample as judicial powers
are they must be exercised with the sobering thought jus
dicer et non jus dare (to declare the law, not to make it).
[501 C-D]
5.A mere convention based on several considerations can
not be taken as conclusive of the scope of the Article, when
the Court interprets a constitutional provision. On an
obvious interpretation of Art. 222, the concept of consent
cannot be imported therein. By healthy convention normally
the consent of the Judge concerned should be taken, not so
much as a constitutional necessity, but as a matter of
courtesy in view of the high position that is held by him.
In cases where the judge does not consent and the public
interest compels, the power under Art. 222 can be exercised.
[501 D-E]
6.The power of non-consentaneous transfer does exist.
Salutory safe-guardsto ensure judicial independence
with concern for the All-India character of the superior
Courts in the context of the paramount need of national
unity and integrity and mindful of the advantages of inter-
state cross-fertilisation and avoidance of perniciousness
were all in the calculations of the framers of the
Constitution. It is not possible to read the word "consent"
in Art. 222 on a construction of the plain and unambiguous
language of the Article. [497 G, 503 D-E]
7.The impact of other Articles, the embrace of the
independence creed, the influence of administrative
precedents and the explosive allergy to the plurality of
transfers which were not before the Court cannot be
permitted to subjectify judicial construction to invite the
comment "Thy wish was father...... to that thought".
Charity to the capacity of the illustrations dead whose
learned toils and deliberate pens drafted Art. 222 behaves
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 90
us not to stultify them in their silent graves by slurring
over the express language interpretatively co invent a
hidden veto power. [501 F-G]
Nokes v. Don Caster Amalgamated Collieries Ltd. 1940 AC 1014
Referred to.
8.Where the first principle of justice to the community
is contradicted by the continuance of a judge in a
particular state, the ’independence’ principle will have to
be harmonised with the cause of compelling public interest.
Indeed the independence of the judiciary is itself a
necessitous desideratum of public interest and so
interference with it is impermissible except where other
considerations of public interest are so strong and so
exercised as not to militate seriously against the free flow
of public justice. Such a balanced blend
433
is the happy solution of a delicate complex, subtle, yet
challenging issue which bears on human rights and human
justice. The power under Art. 222 is to be exercised only
exceptionally and in public interests and where it becomes
expedient and necessary in the public interest, especially
of judicial administration, effective consultation with the
Chief Justice of India, as a sine qua non, takes care of
executive intrusions. [491 G, H, 492 A, 500 G]
9. The terms "appointment" and "transfer" as used in the
Constitution are not interchangeable conveying the same
meaning. An analysis of Art. 217(1) (c) shows that the
constitutional provision makes a clear-cut distinction
between ’appointment’ and ’transfer’. [498 F, G, 499 A]
10.Strictly speaking, when a judge is transferred from one
High Court to anotherunder the clear sanction of law,
namely, Art. 222(1) of the Constitution, afresh oath is
not necessary. But even if on a liberal interpretation of
Art.219 such an oath may be necessary when a judge is
transferred from one High Court to another and before he
enters in his new office as a transferee judge, that,
however. does not at all show that a judge cannot be
transferred without his consent. [499 C-D]
11.The consultation, in order to fulfil its normative
function in Art. 222(1) must be real, substantial and
effective consultation based on full and proper materials
placed before the Chief Justice by the Government. The
President must communicate to the Chief Justice all the
materials he has and the course he proposes. The Chief
Justice, in turn must collect necessary information through
responsible channels or directly acquaint himself with the
requisite data, deliberate on the information he possesses
and proceed in the interests of the administration of
justice to give the President such counsel of action as he
thinks will further the public interest, especially the
cause of the justice system. Before giving his opinion, the
Chief Justice of India may informally ascertain from the
judge concerned if he has any real personal difficulty or
any humanitarian ground on which his transfer may not be
directed. Although the opinion of the Chief Justice of
India may not be binding on the Government, it is entitled
to great weight and is normally to be accepted by the
Government because the power under Art. 222 cannot be
exercised whimsically or arbitrarily. [501 G-H, 502 A-C]
Chandramouleshwar Prasad v. Patna High Court, [1970] 2
S.C.R. 666; Shamsher Singh v. State of Punjab, A.I.R. 1974
S.C. 2192 referred to.
Per Untwalia J.
1.Once the important points of great constitutional and
public importance have been raised and argued, though the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 90
appeal under Art.136 could be allowed to stand disposed of
finally on the basis of the consent order alone, it is
necessary and expedient for the Court to pronounce its
judgement. [505 A-B]
Ardeshir Mama v. Flora Sasoon 55 Indian Appeals 360,
Followed. Dissenting from the majority.
HELD:
2.The word "transfer" has been used in proviso (c) of
Art. 217 (1) and Art. 222(1) because the transfer is from
one High Court to another Is a High Court Judge and not to
any superior Court. The effect of the transfer is to make
the judge transferred to vacate his office of a judge of the
High Court from which he is transferred and to appoint him
as a judge of the High Court of another State. [511 H, 512
A]
3.A transferred judge cannot become a judge without
taking his fresh oath in accordance with Art. 219 and in the
form prescribed in the Third Schedule. Nor can be compelled
to vacate his office of the Judge of the High Court to which
he was initially appointed and assume office as a judge of
another High Court without his consent. [512 E, 513 E]
4-930 SCI/77
43 4
4.Public interest may require that he should be so
appointed. But at the same time public interest also
demands non-interference with the Independence of the
judiciary by not forcing a judge to vacate his office of the
High Court to which he was appointed and to accept the
office of the Judge of the Supreme Court or the High Court
without his consent, until and unless a special law of
procedure has been made or prescribed guarding against any
inroad on the independence of the judiciary. [513 G-H]
Rondel v. Worsley, [1960] 1 A.C. 191; Quoted with approval.
[Concurring with Chandrachud, J.]
5.No order of transfer can be made by the President
without the consultationwith the Chief Justice of India.
Such a consultation is a condition precedentto the making
of the order. All necessary facts in support of the pro-
posed action of transfer must be communicated to him and all
his doubts and queries must be adequately answered by the
Government. It will be open to the Chief Justice of India,
rather, he will be well advised to do so, to make such
inquiries and from such quarters as he may think fit and.
proposes to do in order to satisfy himself apropos the
desirability, advisability and the necessity of the proposed
transfer. Inquiries from any of his colleagues in the
Supreme Court and especially the one coming from the High
Court, a judge which is proposed to be transferred as also
from the concerned judge will be highly beneficial and
useful. Ordinarily and generally the views of the Chief
Justice of India ought to prevail and must be accepted. The
Government, however, is not bound to accept and act upon the
advice of the Chief Justice. It may differ from him and for
cogent reasons may take a contrary view. In other words,
the advice is not binding on the Government invariably and
as a matter of compulsion in law. [506 B-D]
Cliandramouleshwar Prasad v. Patna High Court and Ors.
[1970] 2 S.C.R. 666; Applied.
6.To invoke the principle of natural justice in the case
of transfer of a Judge under Art. 222(1). if otherwise it is
permissible to make the transfer without his consent will be
stretching the principle to a breaking point. [506-E]
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 90
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1486 of
1976.
From the Judgment and Order dated the 4th November, 1976 of
the Gujarat High Court in Special Civil Application No. 911
of 1976.
S.Y. Gupte, Attorney General, R. P. Bhatt, R. N. Sachthey
and Miss A. Subhashini for the Appellant.
H. M. Seervai, B. R. Agarwala and Janendra Lal, for
Respondent No. 1.
ORDER
We have heard the learned Attorney-General and Mr. Seervai
fully on the various, points arising in this appeal. We
will deal with the arguments of the learned counsel later by
a considered judgment or judgments. For the present we will
only say that since we are informed, that the parties to the
appeal have arrived at a settlement, the appeal shall stand
disposed of in terms of that settlement. Those terms are as
follows :
"On the facts and circumstances on record the
present government do not consider that there
was any justification for transferring Justice
Sheth from Gujarat High Court and propose to
transfer him back to that High Court.
43 5
On this statement being made by the learned
Attorney General, Mr. Seervai Counsel for
respondent No. 1 (Justice S. H. Sheth)
withdraws the writ petition with leave of the
Court."
The following Opinions were delivered:
CHANDRACHUD, J. This appeal by certificate
involves the question as to the
constitutionality of a notification issued by
the President of India on May 27, 1976 which
reads thus
"In exercise of the powers conferred by clause
(1) of Article 222 of the Constitution of
India, the President after consultation with
the Chief Justice of India, is pleased to
transfer Shri Justice Sankalchand Himatlal
Sheth, Judge of the High Court of Gujarat, as
Judge of the High Court of Andhra Pradesh with
effect from the date he assumes charge of his
office."
By, a foot-note, Justice Sheth was "requested to take charge
of his duties in the Andhra Pradesh High Court Within four
weeks from the date of issue" of the notification. The
notification was issued by the Government of India in its
Ministry of Law, Justice and Company Affairs, Department of
Justice.
Mr. Sheth complied with the Order of transfer and assumed
charge of his office as a Judge of the Andhra Pradesh High
Court but before doing so, he filed a writ petition, 911 of
1976, in the Gujarat High Court challenging the
constitutional validity of the notification on the following
grounds :
(1) The order was passed without his
consent: such consent must be necessarily
implied in article 222(1) of the Constitution
and therefore the transfer of a Judge from one
High Court to. another High Court without his
consent is unconstitutional;
(ii)The order was passed in breach of the
assurance given on behalf of the Government of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 90
India by the then Law Minister Shri A. K. Sen
who, while moving the Constitution (15th
Amendment) Act, 1963 said in the Lok Sabha
that "so far as High Court Judges were
concerned, they should not be transferred
excepting by consent". Mr. Sheth having
accepted judgeship of the Gujarat High Court
on April 23, 1969 on the faith of the Law
Minister’s assurance, the Government of India
was bound by that assurance on the doctrine of
promissory estoppel;
(iii)The order of transfer mitigated
against public interest. The power conferred
by article 222(1) was conditioned by the
existence and requirement of public interest,
and since the impugned transfer was
4 3 6
not shown to have been made in public
interest, it was ultra vires; and
(iv)The order was passed without effective
consultation with the Chief Justice of India.
’Consultation’ in article 222(1) means
"effective consultation" and since
the precondition of article 222(1)
that no transfer can be made without such
consultation was not fulfilled, the order was
bad and of no effect.
The Union of India was respondent 1 to the petition while
Shri A. N. Ray, Chief Justice of India, or his successor-in-
office was impleaded as respondent 2. The Union of India
filed a counter-affidavit repudiating the factual
allegations made by Mr. Sheth in his writ petition and
disputing the validity of his legal contentions. The Chief
Justice of India did not file any affidavit and beyond
appearing through the Addl. Solicitor General, who also
represented the Union Government, he took no part in the
proceedings.
The, writ petition was heard by a special Bench of three
Judges, Justice J. B. Mehta, A. D. Desai and D. A. Desai.
They unanimously rejected the challenge to the order of
transfer on the ground of promissory estoppel. As regards
the first ground, J. B. Mehta and D. A. Desai, JJ. held that
the order was not void for want of Mr. Sheth’s consent to
his transfer. A. D. Desai J., however, took the view that
the Judge of a High Court cannot be transferred without his
consent. The third and fourth grounds were treated together
by the learned Judges as two facets of the same contention
and they held, unanimously, that there was no effective
consultation with the Chief Justice of India. They arrived
at this conclusion by different processes of reasoning into
which it is unnecessary to go at this stage. J. B. Mehta J.
voided the order of transfer on the ground that Mr. Sheth
was "never consulted or informed of even the proposal of
transfer as per the minimum requirement of natural justice
and because it was not demonstrated .... by any material on
record that there was effective consultation of the Chief
Justice of India as required by the mandatory provision of
Article 222(1)". A. D. Desai J. held that the order was
unconstitutional because it was passed without Mr. Sheth’s
consent and secondly because it was passed "for a collateral
purpose". The "discretionary power under article 222(1)"
was, according to the learned Judge, exercised "arbitrarily
and unreasonably". D.A. Desai J. considered the matter by
formulating these questions : "Is the power of the President
under Art. 222 unfettered ? What are the conditions for the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 90
exercise of such a discretionary power ? Have these
conditions been fulfilled ? What is the scope and nature of
consultation as envisaged by Art. 222(1)?" Referring to the
"mass transfers" of 16 Judges which were effected with "one
stroke", though each Judge may have bad peculiar personal
difficulties to contend with, and considering that the Union
of India bad failed to disclose the "nature and content of
the consultation" with the Chief Justice of India, the
learned Judge concluded that the consultation was riot
meaningful. He set aside the order observing, that "the
bead of the Judiciary does not appear to have taken into
considera-
437
tion all the relevant data when he was consulted and
therefore, it is an inescapable conclusion .... that the
transfer order for want of consultation as required by the
Constitution is void".
The High Court has granted to the Union of India a
certificate under articles 132 and 133(1) of the
Constitution to appeal to this Court. The Union Government
has filed this appeal on the basis of that certificate,
impleading Justice S. H. Sheth as respondent I and the Chief
Justice of India as respondent 2.
During the hearing of the writ petition in the High Court,
the Union of India raised an objection to the three
particular Judges hearing the matter on the ground of bias.
That objection was overruled by the Court and fortunately,
the learned Attorney-General has spared us from having to
consider that untenable contention by stating that he does
not want to caanvas it. Since Mr. Seervai, apppearing on
behalf of respondent 1, has not pressed the, contention as
regards promissory estoppel, it is unnecessary to examine
that point also.
Mr. Seervai put the point of consent in the forefront and
wove the brunt of his argument around it. Article 222(1) of
the Constitution does not speak of consent. It provides :
"The President may, after consultation with
the Chief Justice of India, transfer a Judge
from one High Court to any other High Court."
But the learned counsel contends that the power conferred by
the article is, by necessary implication, subject to the
precondition that the Judge who is proposed to be
transferred must consent to his transfer. The fundamental
basis underlying this contention is that judicial
independence can be undermined by vesting the power of
transferring a Judge in the executive and therefore, the,
transfer of High Court Judges from one High Court to another
Without their consent is calculated to undermine the
independence of the High Court Judges. In order to uphold
the independence of the judiciary, which is a basic feature
of the Constitution, the Court has not only the power but it
is its plain duty to read into article, 222(1) a limitation
which is not to be found on the face of that article. This
argument is elaborated thus :
(1) The transfer of a Judge, in many a case,
inflicts personal injuries on him. For
example, a Judge transferred from one High
Court to another may have to maintain two
establishments ; if his wife or unmarried
daughter is gainfully employed, she may be
required to give up the employment; the
education of his children may suffer ; and
above all, the transfer of a permanent Judge
disables him from practising not only in the
High Court to which he was initially
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 90
appointed but in the High Court or High Courts
to which he may be subsequently transferred.
To empower the executive to inflict these
injuries on
438
a Judge would gravely undermine the
independence of the judiciary because, human
nature being what it is, a large number of
Judges would, consciously or unconsciously, be
induced to fall in line with the wishes and
policies of the executive government.
(2) It would be a surprising anomaly that
the transfer of subordinate judges, as decided
by the Supreme Court in several cases, should
be exclusively within the control of the High
Court in order to ensure that those judges are
immune from the exercise of improper pressures
by the executive, whereas High Court Judges
themselves, for whose independence the
Constitution has made copious and elaborate
provisions, should be left to the mercy of the
executive.
(3) The requirement of article 222(1) that
the President must consult the Chief Justice
of India before transferring a Judge does not
answer the problem because, even though
consultation with the Chief Justice is not a
matter of formally, the final world, in
practice, always rests with the executive.
(4) Assuming that the President’s power to
transfer a High Court Judge would be reduced
to a dead letter that power is made to depend
upon the Judge’s consent, if the choice lay
between depriving numerous articles of the
Constitution designed to secure the
independence of the judiciary of their content
and, on the other hand, depriving article
222(1) of its practical effect, the second
alternative ought to and must be preferred.
(5) The oath which a Judge of the High Court
has to take, as prescribed by the Third
Schedule, clause VIII of the Constitution,
that he will perform the duties of his office
"without fear or favour", an expression which
was absent in the form of the oath prescribed
by Schedule IV to the Government of India Act,
1935, will not only become meaningless but
will be impossible to fufil unless it was
placed out of the power of the legislature or
the executive to secure favors from a Judge by
putting him in fear of the injury which can
easily be inflicted upon him by transferring
him from one High Court to another.
(6) Even assuming that transfers of High
Court Judges are necessary in the interests of
national integration, it cannot be ignored
that independence of the High Court Judges is
the highest public interest, particularly in a
federal or quasi-federal Constitution like
ours and if there is a conflict of interest,
the high principle of the independence of the
judiciary must prevail over the amorphou
s
concept of national integration.
439
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 90
(7) The transfer of a Judge from one High
Court to another is, subject to incidents like
continuity of service, in the nature of a
fresh appointment to the other Court. Since a
person cannot be appointed to a post without
his consent, article 222(1) should be read as
if it contains the words "with his consent"
after the words "transfer a Judge" and before
the words "from one High Court to any other
High Court". In other words, "transfer",
within the meaning of article 222(1) means a
consensus, not a compulsive shifting of a
Judge from one High Court to another.
(8) It is of the essence of judicial service
that there is no master-and-servant
relationship between a Judge and the
Government. The Judge cannot be asked by the
Government to decide a case in any particular
way. Even the higher Court, generally only
corrects the Judge of the lower court-it does
not command him. Therefore, "transfer" in
article 222(1) does not have the same colour
or content as in other services. The concept
of ’transfer’ under that article is totally
different, a concept which must be construed
harmoniously with the various constitutional
provisions which are enacted in order to
secure judicial independence. A non-
consensual transfer will provide the executive
With a potent weapon to punish the Judge who
does not toe its line and thereby destroy the
independence of the judiciary.
(9) Of no word can one say that it is clear
and unambiguous unless one reads the whole
document in which that word occurs.
"Transfer", in the context of the entire
constitutional scheme becomes a word of
doubtful import. If a vital constitutional
principle is going to be violated by putting a
wider construction on that expression, it must
receive a narrow, restricted meaning ; and
lastly,
(10) Such a narrow interpretation will not
deprive the article of its practical efficacy
or reduce it to dead letter because, as a
matter of fact, nearly 25 Judges were
transferred with their consent since the
inception of the Constitution. It was only
during the emergency, when every safeguard of
liberty bad gone, that mass transfer of High
Court Judges were resorted to by the executive
on grounds unconnected with the requirements
of public interest.
The learned Attorney-General does not dispute that the
greatest care ought to be taken to preserve the independence
of the judiciary which the Constitution so copiously
protects. Nor does he join issue on the question of
hardship which a transfer ordinarily entails. He, however,
contends that the word ’transfer which occurs in article
222(1)
440
is not an expression of ambiguous import, that there is no.
justification for reading the precondition of ’consent’ in
the article which is not to be found therein and that, even
assuming for the purposes of argument that a Judge has to
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 90
take a fresh oath before taking office in the High Court to
which he is transferred, ’transfer’ does not involve a fresh
appointment. Therefore, it is not necessary to, obtain the
consent of the Judge to his transfer from one High Court to
another. On the question of consultation with the Chief
Justice of India, the Attorney General did not labour at any
length. Indeed, Mr. Seervai himself did not expatiate, on
that question. The drift of the Union’s submission is that
consultation with the Chief Justice can be an adequate
safeguard against arbitrary transfers. We will have to
consider carefully the question as to what the term
’consultation’ comprehends, in order that such a safeguard
may be real and effective.
I will deal first with Mr. Seervai’s contention that on a
true construction of article 222(1) of the Constitution, a
Judge of a High Court cannot be transferred without his
consent. Since article 222(1) does not provide that such
consent is necessary, the argument raises the question
whether one can still read into that article words which are
not to be found in it. Statutory interpretation, with
conflicting rules pulling in different directions, has
become a murky area and just as a case-law digest can supply
an authority on almost any thinkable pro-position, so the
new editions of old classics have collected over the years
formulas which can fit in with any interpretation which one
may choose to place. Perplexed by a bewildering mass of
irreconcilable dogmas, courts have adopted and applied to,
cases which come before them rules which reflect their own
value judgments, making it increasingly difficult to define
with precision the extent to which one may look beyond the
actual words used by the legislature, for discovering the
true legislative purpose or intent. "Traditional
overemphasis on the literal aspects of meaning has provoked
today’s reactionary underemphasis on them", says Reed
Dickerson in his innovative work on "The Interpretation and
Application of Statutes"(1), but "A wholesome resistance to
the excesses of liberalism need not exaggerate the
uncertainties of language nor distort the proper role or
range of judicial discretion." (pag 4).
In the United States of America, Judges like George
Sutherland and Hugo Black have made fervent pleas that the
Court must read the constitutional clauses literally. In
Home Building and Loan Association v.’ Blaisdell(2).
Justice Sutherland in his dissenting opinion said that "If
the provisions of the Constitution be not upheld when they
pinch as well as when they comfort, they may as well be
abandoned." In Griswold v. Connecticut(3) Justice Black,
also in a dissent, said that "one of the most effective ways
of diluting or expanding a constitutionally guaranteed right
is to substitute for the crucial word or words of a
constitutional grantee another word or words more or less
flexible and more or less restricted in meaning." Other
Judges like Benjamin Cardozo have said that one draws
precise meaning,
(1)Little, Brown and Company, Boston; Tortonto. Ed. 1975
(2) 78 L. Ed. 413 (1934)
(3) 14 L. Ed. 2d 510 (1965)
44 1
from a document as vaguely worded as the Constitution only
by first reading values into its clauses. And by a famous
formulation, Justice Frankfurter said in Massachusetts S.
Insurance Co. v. U.S.(1) that "there is no surer way to
misread a document than to read it literally." But this is
not to be taken too literally. "The hard truth of the
matter is that American Courts have no intelligible,
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 21 of 90
generally accepted, and consistently applied theory of
statutory interpretation." (2)
The normal rule of interpretation is that the words used by
the legislature are generally a safeguard to its intention.
Lord Reid in Westminster Bank Ltd. v. Zang(3) observed that
"no principle of interpretation of statutes is more firmly
settled than the rule that the Court must deduce the
intention of Parliament from the words used in the Act."
Applying such a rule, this Court observed in S. Nara-
yanaswami v. G. Panneerselyam(4) that "where the statute’s
meaning is clear and explicit, words cannot be
interpolated." What is true of the interpretation of an
ordinary statute is not any the less true in the case of a
constitutional provision, and the same rule applies equally
to both. But if the words of an instrument are ambiguous in
the sense that they can reasonably bear more than one
meaning, that is to say, if the words are semantically
ambiguous, or if a provision, if read literally, is patently
incompatible with the other provisions of that instrument,
the court would be justified in construing the words in a
manner which will make the particular provision purposeful.
That, in essence is the rule of harmonious construction. In
M. Pentiah v. Veeramallappa(5) this Court observed :
"Where the language of a statute, in its
ordinary meaning and grammatical construction
leads to, a manifest contradiction of the
apparent purpose of the enactment, or to some
inconvenience or absurdity, hardship or
injustice presumably not intended, a
construction may be put upon it which modifies
the meaning of the words, and even the
structure of the sentence......
But, if the provision is clear and explicit, it cannot be
reduced to a nullity by reading into it a meaning which it
does not carry and, therefore, "Courts are very reluctant to
substitute words in a statute or to add words to it, and it
has been said that they will only do so where there is a
repugnancy to good sense."(5) In the view which I am dis-
posed to take, it is unnecessary to dwell upon Lord
Denning’s edict in Seaford Court Estates Ltd. v. Asher(6)
that when a defect appears in a statute, a Judge cannot
simply fold his hands and blame the draftsman, that he must
supplement the written word so as to give force and life to
the intention of the legislature and that he should ask
himself the question how, if the makers of the Act had
themselves come across the
(1) (1956) 352 U.S. 128 at 138.
(2) H. Hart, Jr. & A. sacks, The Legal/Process 1201
(tentative edition 1958), quoted at p. I by Reed Dickerson,
as a legend to Chapter I : "Is There a Problem ?", of "The
Interpretation and Application of Statutes".
(3) (1966) A.C. 182.
(4) AIR 1972 SC 2284 (at 2290)
(5) AIR 1961 SC 1 107 (at III 5)
(6) (1949) 2 All E.R. 155 (at p. 164)
442
particular ruck in the texture of it, they would have
straightened it out. I may only add, though even that does
not apply, that Lord Denning wound up by saying, may be not
by way of recanting, that "a Judge: must not alter the
material of which the Act is woven, but he can and should
iron out the creases."
The sheet anchor of Mr. Seervai’s argument is that
independence of the judiciary is one of the cardinal
features of our Constitution, that the Constitution has made
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 22 of 90
elaborate provisions to secure the freedom of the judiciary
from executive interference and that, if a High Court Judge
is allowed to be transferred without his consent, the
independence of the judiciary will be gravely imperilled and
constitutional provisions, designed to protect that
independence will be denuded of their meaning and content.
Transfer, according to the counsel, must therefore be taken
to mean consensual migration, as opposed to compulsive
shifting, of a Judge from one High Court to another. It is
beyond question that independence of the judiciary is one of
foremost concerns of our Constitution. The Constituent
Assembly showed great solicitude for the attainment of that
ideal, devoting more hours of debate to that subject than to
any other aspect of the judicial provisions : "If the beacon
of the Judiciary was to remain bright, the courts must be
above reproach, free from coercion and from political
influence".(1), Participating in the-debate on judicial
provisions, Jawahar Lal Nehru said that is was important
that the High Court Judges should not only be first-rate but
should be of the highest integrity, "people who can stand up
against the executive government, and whoever come in their
way." Dr. Ambedkar, while winding up the debate on the
judicial provisions, said that the question as regards the
independence of the judiciary was "of the greatest
importance" and that there could be no difference of opinion
that the judiciary bad to be "independent of the executive"
C.A.D. Vol. 8 p. 297.
Having envisaged that the judiciary, which ought to act as a
bastion of the rights and freedom of the people, must be
immune from the influence and interference of the executive,
the Constituent Assembly gave to that concept a concrete
form by making various provisions to secure and safeguard
the independence of the judiciary. Article 50 of the
Constitution, which contains a Directive Principle of State
Policy, provides that the State shall take steps to separate
the judiciary from the executive in the public services of
the State. The form of oath prescribed by clause VIII,
Third Schedule of the Constitution for a Judge or a Chief
Justice of the High Court requires him to affirm that he
will perform the duties of his office "without fear or
favour, affection or illwill." The words "without fear or
favour" were added by the Constitution to the oath
prescribed for Judges and Chief Justices of High Court by
the Fourth Schedule, clause 4 of the Government of India
Act, 1935. By article 202(3) (d), expenditure in respect of
the salaries and allowances of High Court Judges is charged
oil the Consolidated Fund of each State. The pensions
payable to High Court Judges are charged on the Consolidated
Fund of India under article 112(3) (d) (iii). By virtue of
article 203 (1), the salaries and
(1) The Indian Constitution : Cornerstone of a Nation by
Granville Austin (p.164-165) Ed. 1972
443
allowances are not subject to the vote of the Legislative
Assembly and, by virtue of article 113 (1 ), the pensions
are not subject to the vote of the Parliament. The High
Court Judges, by article 221 (1), are entitled to be paid
the salaries which are specified in the Second Schedule to
the Constitution. Evidently, such salaries cannot be varied
without an amendment of the Constitution. Further, under
the proviso to article 221 (2), neither the allowances of
the Judge nor his rights in respect of leave of absence or
pension can be varied to his disadvantage after his
appointment. The relevant part of article 211 provides that
no discussion shall take place in the, legislature of a
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 23 of 90
State with respect to theconduct of any Judge of a High
Court in the discharge of his duties. Article 215 makes
every High Court a court ’of record and confersupon it
all the powers of such a court including the power to punish
for contempt of itself. Judges of the High Court, by arti-
cles 2 1 7 ( 1 ), hold their tenure until they attain the
age of 62 and not at the pleasure of the President.
Appointments of officers and servants of a High Court are to
be made under article 229(1) by the Chief Justice of the
High Court or such other Judge or officer of the Court as
may direct. By sub-clause (2) of that article, the
conditions of service of officers and servants of a High
Court shall, subject to the provisions of any law made by
the legislature of the State, be such as may be prescribed
by rules made by the Chief Justice of the Court or by some
other Judge or officer of the Court authorised by the Chief
Justice. Under clause (3), the administrative expenses of
the High Court, including all salaries, allowances and
pensions payable to or in respect of the officers and
servants of the Court, are to be charged upon the
Consolidated Fund of the State.
These provisions, indisputably, are aimed at insulating the
High Court judiciary, and even the officers and servants of
the Court, from the influence of the executive. Not content
with that, the framers of the Constitution introduced a
fasciculus of articles in Chapter VI of Part VI of the
Constitution, under the heading ’Subordinate Judiciary’.
The provisions of Chapter VI, particularly articles 233(1)
and 235, gave rise to a spate of litigation between the
State executives and High Courts which had to be resolved by
this Court by keeping in view the high purpose of the
particular provisions. This Court held that the scope and
ambit of control vested in the High Courts under article 235
covers the entire spectrum of administrative control and is
not confined merely to general superintendence or to
arranging the day-to-day work of the subordinate courts.
Thus, the ’control’ envisaged by article 235 comprehends
control over the conduct and discipline of District Judges
(State of West Bengal v. Nrindera Nath Bagchi(1); their
further promotions and confirmations (State of Assam v.
Kuseswar (2) and Joginder Nath v. Union of India (3);
disputes regarding their seniority (State of Bihar v. Madan
Mohan(4); their transfers (State of Assam v. Ranga
Muhammad)(5); the placing of their services at the disposal
of the Government for an ex-cadre post (State of Orissa v.
Sudhansu Sekhar Misra (6) ; considering their fitness for
being retained in service
(1) [1966] 1 SCR 77 1.(2) AIR 1970 SC 16 16.
(3) AIR 1975 SC 514.(4) AIR 1976 SC 404
(5) [1967]1 1 SCR 454.(6) [1968] 2 SCR 154.
444
and recommending their discharge from service (Ram Gopal v.
State of Madhya Pradesh(1); exercise of complete
disciplinary jurisdiction over them including initiation of
disciplinary inquiries (Punjab and Haryana High Court v.
State of Haryana) (2) ; and their premature retirement
(State of Haryana v. Inder Prakash) (3). The last of the
cases in this line is the recent judgment of this Court in
Shamasher Singh v. State of Punjab (4) in which the learned
Chief Justice, delivering the leading judgment, observed :
"The members of the subordinate judiciary are not only under
the control of the High Court but are also under the care
and custody of the High Court. "By a concurring judgment,
Krishna Iyer J. said on behalf of Bhagwati J. and himself
that fearless justice is a prominent creed of our
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 24 of 90
Constitution and that "the independence of the judiciary is
the fighting faith of our founding document."
Unquestionably, the fundamental principle on which these
constitutional provisions and decisions rest cannot be
allowed to be violated or diluted, directly or indirectly.
But then the question is : Is there any need or
justification, in order to uphold and protect the indepen-
dence of the judiciary, for construing article 222 (1) to
mean that a Judge cannot be transferred from one High Court
to another without his consent? I think not. 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. The executive possesses no such power under
our Constitution and if it can be shown-though we see the
difficulties in such showing that a transfer of a High Court
Judge is made in a given case for an extraneous reason, the
exercise of the power can appropriately be struck down as
being vitiated by legal mala fides. The extraordinary power
which the Constitution has conferred on the President by
article 222(1) cannot be exercised in a manner which is cal-
culated to defeat or destroy in one stroke the object and
purpose of the various provisions conceived with such care
to insulate the judiciary from the influence and pressures
of the executive. The power to punish a High Court Judge,
if one may so describe it, is to be found only in article
218 read with articles 124(4) and (5) of the Constitution
under which a Judge of the High Court can be removed from
his office by an order of the President passed after an
address by each House of Parliament, supported by a majority
of the total membership of that House and by a majority of
not less than two-thirds of the members of that House
present and voting, has been presented to the President in
the same session for such removal, on the ground of proved
misbehavior or incapacity. Thus, if the power of the
President, who has to act on the advice of the Council of
Ministers, to transfer a High Court ,Judge under article 222
(1) is strictly limited to cases in which the transfer
becomes necessary in order to subserve public interest, in
other words, if it be true that the President has no power
to transfer a High Court Judge for reasons not hearing on
public interest but arising out of whim, caprice or fancy of
the executive or its desire to bend a Judge to its own way
of thinking, there is no possibility of any interference
(1) [1970] 1 SCR 472.
(3) AIR 1976 SC 1841
(2) AIR 1975 SC 613.
(4) [1975] 1 SCR 814.
445
with the independence of the judiciary if a Judge is
transferred without his consent.
Once it is appreciated that a High Court Judge can be
transferred on the ground of public interest only, the
apprehension that the executive may use the power of
transfer for its own ulterior ends and thereby interfere
with the independence of the judiciary, loses its force. It
is true that a challenge to an order of transfer under
article 226 of the Constitution would involve much time and
expense which a Judge can ill-afford. But it is notorious
that court proceedings involve time and expense which often
exceed the capacity of the litigants, The hardship,
embarrassment or inconvenience resulting to a Judge by
reason of his being compelled to become a litigant in his
own court, cannot justify the addition of words to an
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 25 of 90
article of the Constitution making tits consent a
precondition of his transfer. In adding such words, we will
be confusing our own policy views with the command of the
Constitution. But we hope and trust that in his fight
against an overbearing executive, the Judge will not be
waging a one or unequal battle. The ink on recent history
is still not dry and its pages contain a tribute to the gen-
tlemen standing in black robes who, though small in number,
championed public causes with a courage which dumbfounded
even that world in which Martin Luther King and Lord Coke
had lived and died.In fact, the missionary zeal of Mr.
Sheth’s counsel is by itself enough assurance that Judges in
distress, in their unequal contest with the executives will
not fail to receive the assistance and attention of the
illustrious at tile bar.
In this view of the matter, it is unnecessary to consider at
any length the decisions cited by Mr. Seervai in R. M. D.
Chamarbaugwalla v. Union of India(1), Attorney General v.
Prince Ernest Augustus of Hanover(2) and The River Wear
Commissioner v. William Adamson & Ors. (3).
In Chamarbaugwalla’s case (1) the constitutionality of
sections 4 and 5 of the Prize Competitions Act and the rules
made thereunder was challenged on the ground that the
definition of ’prize competition’ included not merely
competitions of a gambling nature but also those in which
success depended to a substantial degree on skill, thereby
violating the petitioners’ fundamental right to carry on
business under article 19 (1 ) (g) of the Constitution. It
was held by this Court that on a proper construction, the
definition of ’prize competition’ took in only such com-
petitions as were of a gambling nature and no others.
Venkatarama Ayyar J. delivering the judgment of the
Constitution Bench, observed that on a literal construction
of the definition it was difficult to resist the contention
of the petitioners that the definition covered competitions
which depend to a substantial degree on skill but the fact
that the Court had to ascertain the intention of the
legislature from the words actually used in the statute did
not mean that the decision must rest on the literal
interpretation of the words in disregard of all other
material : "To arrive at the real meaning, it is always
necessary to get an exact conception of the aim, scope and
object of the whole Act". (P. 936).
In Prince Ernest Augustus of Hanover (supra) a great great
grandson of Ernest, Duke of Cumberland, who succeded to the
throne of
(1) [1957] SCR930(at p. 936)
(2) [1957] A.C. 436 (at pp. 460-461)
(3) [1876-77] A.C. 743 (at pp. 764-767)
4 46
Hanover in 1837, sought a declaration that he was a British
subject by virtue of the statute of 1705, 4 Anne, c. 4.
Viscount Simonds, accepting the claim, said in his speech
that "words, and particularly general words, cannot be read
in isolation : their colour and content are derived front
their context. (p. 461).
In River Wear Commissioners, (supra) the Harbours, Docks,
and Piers Act, 1847 enacted, broadly, that the owner of
every vessel shall be answerable to the undertakers for any
damage done to the Harbor by such vessel or by any person
employed about the same, and that the master or person
having the charge of such vessel, through whose wailful act
or negligence any such. damage is done, shall also be liable
to make good the same. Lord Blackburn observed in his
speech that the golden rule of construction was that one
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 26 of 90
must "take the whole statute together and construe it all
together, giving the words their ordinary signification,
unless when so applied they produce an inconsistency, or an
absurdity or inconvenience so great as to convince the Court
that the intention could not have been to use them in their
ordinary signification, and to justify the Court in putting
on them some other signification, which, though less proper,
is one which the Court thinks the words will bear." (pp.
764-765).
Since I have taken the view that a High Court Judge cannot
be transferred as a matter of punishment, as for example,
for the views which he bona fide holds and that his
transfer, being conditioned by the requirements of public
interest, cannot be effected for an extraneous purpose, it
is unnecessary to extend to the instant case the ratio of
these decisions. It is needless, in a broad sense, to cut
down the width of the words used in article 222(1) by making
the power of transfer dependent on the consent of the Judge
himself. It is also needless, in order to effectuate the
object of the other constitutional provisions, to read any
such limitation into that article,.
Experience shows that there are cases, though fortunately
they are few and far between, in which the exigencies of
administration necessitate the transfer of a Judge from one
High Court to another. The factious local atmosphere
sometimes demands the drafting of a Judge or Chief Justice
from another High Court and on the rarest of rare occasions
which can be counted on the fingers of a hand, it becomes
necessary to withdraw a Judge from a circle of favorites and
non-favourites. The voice of compassion is heard depending
upon who articulates it. Though transfers in such cases are
preeminently in public interest, it will be impossible to
achieve that purpose if a Judge cannot be transferred with
out his consent. His personal interest may lie in
continuing in a Court where his private interest will be
served best, whereas, public interest may require that his
moorings ought to be served to act as a reminder that "’the
place of justice is a hallowed place". Mr. Seervai does see
the possibility of such a need but he contends that if the
choice is between two alternative evils, we should Prefer
the construction which will not impair the efficacy of the
various safeguards created by the Constitution for unfolding
the independence of the judiciary and reject the other which
will enable a Judge to be transferred in a few isolated
cases of the type described above. This argument loses its
force and validity in view of my holding that the transfer
of a High
44 7
Court Judge without his consent Will not damage or destroy
the provisions contained in the Constitution for preserving
the independence of the judiciary.
Mr. Seervai relies upon a judgment of the House of Lords in
Rondel v. Worslay(1) where a litigant asked for damages for
professional negligence from his counsel. On the question
whether an action for negligence lies against a barrister,
it was held that the immunity of a barrister from an action
for negligence at the suit of ,his client in respect of his
conduct and management of a cause in court was not based on
the, absence of a contract between the barrister ,and client
but on public policy and long usage in that, the interests
of administration of justice required that a barrister
should be able to carry out his duties to the, court
fearlessly and independently. Lord Reid said in his speech
that like so many questions which raised the ,public
interest, ’a decision one way was likely to cause hardship
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 27 of 90
to individuals, while a decision the other way would involve
disadvantage to the public interest. The issue, according
to the learned Law Lord, therefore was whether the abolition
of the rule of immunity would probably be attended by such
disadvantage to the public interest as to make its retention
clearly justifiable (p. 228). Lord Pearce observed in his
speech that to remove the immunity of a barrister from being
sued for negligence would create a great injury to justice
and, therefore, the immunity should be upheld (p. 268) and
that though it would appear to some that rule of immunity
creates many hardships for which there was no relief, yet
the rule was consciously and consistently adopted by the
English courts, "in order that a greater ill may be avoided,
namely, the hampering and weakening of the judicial
process." (p. 270). The five judgments in Rondel(1) show
the anxiety of courts to overlook an evil in order that a
greater evil may be avoided. But this consideration is not
relevant for our purpose since, in the view which I have
taken, there is no questionhere of choosing between
alternate evils. The construction whichI have placed upon
article 222(1) would facilitate the transferof a High Court
Judge in appropriate cases, without doing any damage to the
provisions of the Constitution which are conceived in the
interests of an independent judiciary.
The last limb of Mr. Seervai’s argument on the question of
consent is that the transfer of a High Court Judge from one
High Court lo another results in a fresh appointment of the
Judge to the other High Court and since a person cannot be
appointed as a Judge with,out his consent, the transfer
cannot be made save With the- consent of the Judge. In
support of this argument Mr. Seervai relies in the first
place on the constitutional requirement that a Judge, upon
being transferred to another High Court, has to take a fresh
oath. It is ,quite correct that a Judge who is transferred
to another High Court has to take a fresh oath before he
assumes the charge of his office as a Judge of the High
Court to which he is transferred. But that does not support
the argument that he enters upon a new office as a result of
a fresh appointment. The simple fact is that a Judge is
transferred to another High Court, not appointed once over
again as a Judge of
(1) [1969] 1 A.C. 191 (at pp. 228,268, 270)
44 8
a High Court or even as a Judge of the High Court to which
he is transferred, The reason why he has to take a fresh
oath upon being transferred to; another High Court is to be
traced to the form of the oath prescribed for High Court
Judges under clause VIII, Third Schedule of the
Constitution. The form of oath prescribed by that clause is
"I, A.B., having been appointed Chief Justice (or a Judge)
of the High Court at (or of).... do swear in the name of
God/ solemnly affirm that I will bear true faith and
allegiance to the Constitution of India. . . . ". Since the
oath is required to be taken by a High Court Judge in his
capacity as a Judge of a named High Court, it becomes
necessary for him to take a fresh oath on being transferred
to another High Court. The circumstances, therefore, that
the Judge takes a fresh oath does not support the inference
that he goes to another High Court under a new or fresh
appointment.
It is important to notice that when. a Judge is transferred
from one High Court to another, the President merely issues
a notification under article 222 (1) of the Constitution.
He does not issue a warrant of appointment as he is required
to do under article 217 (1), when a person, is initially
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 28 of 90
appointed as a Judge of a particular High Court. It is
important further, that in the case of a new appointment the
President is required by ’article 217(1) to consult the
Chief Justice of India, the Governor of the State, and in
the case of appointment of a Judge other than the Chief
Justice, the Chief Justice of the High Court. Article
222(1) provides for one prescription only : Consultation
with the Chief Justice of India. No one has ever suggested,
though that is not conclusive, that the transfer, being in
the nature of a fresh appointment, must comply with the
requirements of article 217(1).
Relying upon the observations of Venkatarama Aiyar J. in M.
P. V. Sundararamier v. State of Andhra Pradesh(1), counsel
argues that the provisions of our ’Constitution have to be
read in the light of the Government of India Act, 1935 since
the Constitution has adopted the basic scheme of that Act.
Clause (c) of the proviso to section 222(2) of the
Government of India Act provided that "the office of a Judge
shall be vacated by his being appointed to be a Judge of the
Federal Court or of another High Court". It is urged that
since by the Government of India Act, appointments to the
Federal Court were clubbed with the appointments to "another
High Court" and since the Judge’s consent was necessary in
both cases, we should read the corresponding provision of
the Constitution in clause (c) of the proviso to article
217(1) to mean that the process of transfer of a Judge from
one High Court to another involves a fresh appointment. It
is impossible to accept this contention. The Government of
India Act did not contain any provision for the transfer of
a Judge. That is why it provided that the office of a Judge
shall be vacated either on the Judge being appointed to be a
Judge of the Federal Court or on being appointed as a Judge
of another High Court.
If anything, the learned Attorney-General seems to me to be
justified in relying upon the legislative history of the
provision regarding
(1) [1958] SCR 1422(at p.1478)
44 9
transfer in order to repel Mr. Seervai’s submission. The,
Government of India Act spoke of a Judge being "apointed" to
be a Judge of another High Court. Clause (c) of the proviso
to article 193(1) of the draft Constitution of India
contained a similar provision to the effect that "the office
of the Judge shall be vacated by his being appointed by the
President to be a Judge of the Supreme Court or of any other
High Court". The draft Constitution too did not contain any
provision for transferring a High Court Judge. But the
drafting Committee incorporated a provision in article
222(1) of the Constitution providing for the transfer of a
Judge from one High Court to another. Significantly, the
use of the expression ’appointed’ was scrupulously avoided
in that behalf. Clause (c) of the proviso to article 217(1)
reads to say that "the office of a Judge shall be vacated by
his being appointed by the President to be a Judge of the
Supreme Court or by his being transferred by the President
to any other High Court" (emphasis supplied). In this
legislative background and seeing that clause (c) itself
makes a distinction between appointment and transfer, I find
it difficult to accept the contention that the two mean one
and the same thing. They connote two distinct concepts and
one is not to be confused with the other.
It may be stated that when the consent of a High Court Judge
was thought necessary, the Constitution has said so.
Article 224A provides that the Chief Justice of a High Court
for any State may, with the previous consent of the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 29 of 90
President, request any person who has held the office of a
Judge of a High Court to sit and act as a Judge of the High
Court for that State. The proviso to the article, which is
relevant for our purpose, says that nothing in the article
shall be deemed to require any such person as aforesaid to
sit and act as a Judge of that High Court, "unless he
consents so to do". This consideration has, however its own
limitations and cannot be carried too far. A Judge of the
High Court cannot, surely, be compelled to work after
retirement, which explains the necessity for obtaining his
consent. Even a Government servant cannot be compelled to
rejoin his duties after retirement. Much less a High Court
Judge.
Finally, in a reverse way, reliance is placed by the learned
counsel on section 2(c) (iii) of the High Court Judges
(Conditions Of Service) Act, 1954 which defines ’actual
service’ to include "joining time on transfer from a High
Court to the Supreme Court or from one High Court to
another......... Clause 1 1 (b) (iii) of Part D of the
Second Schedule to the Constitution contains an identical
provision. The argument is that though it is unquestionable
that a High Court Judge can only be appointed, not
transferred, to the Supreme Court, still these provisions
equate ’transfer’ with ’appointment’ and therefore the two
expressions are used to convey the same meaning and are
accordingly interchangeable. I do not think that by reason
of these provisions the two expressions, transfer and
appointment, can be taken to mean one and the same thing.
The provisions on which counsel relies pertain to the
conditions of service of High Court Judges of which the
intendment is that as in the case of a High Court Judge
transferred to another High Court, so in the case of a High
Court Judge appointed to the Supreme Court, actual service
should include the joining time, as if the Judge is
transferred to another Court. Such technical rules of
procedure
5-930SCI/77
450
governing service conditions cannot affect the
interpretation of a substantive provision like the one
contained in article-222(1).
Two things remain to be considered on this aspect of the
matter the requirement of national integration and the
nature of relationship between Government and the High Court
Judges.
As regards the first, no one can deny that whatever measures
are required to be taken in order to achieve national
integration would be in ’public interest. Whether it is
necessary to transfer Judges from one High Court to another
in the interests of ’national integration is a moot point.
But that is a policy matter with which courts are not
concerned directly. One may, however, venture the
observation that there are numerous other ways of achieving
national integration more effectively than by transferring
High Court Judges from one High Court to another.
Considering the great inconvenience, hardship and possibly a
slur, which a transfer from one ’High Court to another
involves, the better view would be to leave the Judges
untouched and take other measures to achieve that purpose.
If at all, on mature and objective appraisal of the
situation it is still felt that there should be a fair
sprinkling in the High Court judiciary of persons belonging
to other States, that object can be more easily and
effectively attained by making appointments of outsiders
initially. I would only like to add that the record of this
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 30 of 90
case does not bear out the claim that any one of the 16
’High Court Judges was transferred in order to further the
cause of national integration. Far from it. Nothing was to
be gained by transferring a Bombay Judge to Andhra Pradesh,
who had less than nine months left for retirement. And
however pressing the requirement of national integration may
be, that could not have been achieved, on any bone fide
assessment of the situation, by transferring to Calcutta
another Bombay Judge who was hovering between life and death
and who, ultimately, succumbed to the strain of the transfer
as stated by Mr. Seervai.
On the other question, the rejection of Mr. Seervai’s
argument that a High Court Judge cannot be transferred
without his consent, should not be read as a negation of his
argument that there is no master and servant relationship
between the Government and High Court Judges. In general,
the relationship of master and servant imports the existence
of power in the employer not only to direct what work the
servant is to do, but also the manner in which the work is
to be done (see Halsbury’s Laws of England, Third Edition,
Volume 25, page 447, para 871 and the cases cited in foot-
note b). A servant undertakes to serve his master and to
obey his reasonable orders within the scope of the duty
Undertaken. The Government has no power or authority to
direct what particular work a High Court Judge must do and
it can certainly not regulate the manner in which he must do
his work in the discharge of his official functions. A High
Court Judge is also not bound, nor does he undertake, to
obey an order of the Government within the scope of his
duties. Judges, of the High Court owe their appointment to
the Constitution and hold a position of privilege under it.
Their tenure is guaranteed by article 217 (1 ) until they
attain the age of 62.Their salary is protected by article
221 (1). They are entitled by
451
clause (2) of that article to such allowances and to such
rights in respect of leave of absence and pension as may
from time to time be determined by Parliament and, until so
determined, to such allowances and rights- as are specified
in the Second Schedule to the Constitution. By the proviso
to article 221(2), neither their allowances nor their rights
in respect of leave of absence or pension can be varied to
their disadvantage after their appointment; and they cannot
be removed from their office save by following the procedure
prescribed by article 218 read with articles 124(4) and (5).
The very oath of office which they take in pursuance of
article 219 and in accordance with the form prescribed by
clause VIII of the Third Schedule, requires them to swear or
affirm that they will perform the duties of their office
"without tear or favour" and that they will "uphold the
Constitution and the laws". "Without fear" is, primarily
without fear of the executive; "without favour" is,
primarily, without expecting a favour from the executive
which notoriously commands a large patronage. And the
pledge is that they shall "uphold the Constitution and the
laws", not the commands of the executive. Thus, there is a
fundamental distinction between the master and servant
relationship as is generally understood and the relationship
between the Government and High Court Judges. They,. the
Judges of the High Court, are not Government servants in the
ordinary signification of that expression.
In fact, that is why the Government cannot, on its own, take
a unilateral decision in regard to the appointment and
transfer of High Court Judges. A Judge of the High Court
can be appointed by the President only after consultation
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 31 of 90
with the Chief Justice of India, the Governor of the State
and the Chief Justice of the High Court; and he can be
transferred from one High Court to another only after
consultation with the Chief Justice of India. This
consideration takes us to the next question, as important as
the one of consent which has been just disposed of, as to
what is the true meaning and content of ’consultation
provided for by article 222(1) of the Constitution.
The Constitution speaks of consultation by the President in
three situations in so far as judicial appointments are
concerned. Article 124(2) provides that every Judge of the
Supreme Court shall be appointed by the President by warrant
under his hand and seal "after consultations with such of
the Judges of the Supreme Court and of the High Courts in
the States, "as the President may deem necessary for the
purpose". The 1st proviso to article 124(2) requires that
in the case of appointment of a Judge other, than the Chief
Justice, "the Chief Justice of India shall always be
consulted". Article 217(1) provides that every Judge of a
High Court shall be appointed by the President by warrant
under his hand and seal, "after consultation with the Chief
Justice of India, the Governor of the State, and, in the
case of appointment of a Judge other than the Chief Justice,
the Chief Justice of the High Court". By article 222(1),
which is directly in issue,
"The President may, after consultation with
the Chief Justice of India, transfer a Judge
from one High Court to any other High Court".
4 52
Considering the importance which the
Constitution gives to appointments to the
highest echelons of the State and Union
judiciary, it is hard to accept that the
obligation which the Constitution imposes upon
the President to consult the authorities named
in the particular articles, casts no higher
duty on the President than merely to convey to
them what be proposes to do and obtain their
answer. Before we go deeper into this point,
it is necessary to notice the important
distinction which the Constitution has made in
the matter of consultation under article 124
(2) on the one hand, and under the 1St proviso
to that article on the other. While
appointing a Judge of the Supreme Court, the
President may consult such Judges of the
Supreme Court and of the High Courts as he may
deem necessary for the purpose. As contrasted
with the proviso, this provision shows that
there is no obligation on the President, while
appointing a Judge of the Supreme Court, to
consult any Judge or Judges of the Supreme
Court or of the High Courts. Since he may or
may not consult them, their opinion, in the
event that the President decides to consult
them, cannot stand on the same footing as the
opinion of the authorities whom the President
is under an obligation to consult. But more
than that, since the President may or may not
consult them, he has the right to decide upon
the nature of consultation, if at all he
decides to consult them. The 1st proviso to
article 124(2), which is in sharp contrast
with it, says that in the case of appointment
of a Judge of the Supreme Court other than the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 32 of 90
Chief Justice, the Chief Justice of India
shall always be consulted. The proviso leaves
no option to the President and casts on him a
specific, obligation that he shall always
consult the Chief Justice of India in making
an appointment of a Judge of the Supreme
Court. Article 217(1) casts a similar
obligation on the President while appointing a
Judge of the High Court, to consult the Chief
Justice of India, the Governor of the State,
and, in the case of appointment of a Judge
other than the Chief Justice, the Chief
Justice of the High Court. Article 222(1) is,
in substance, worded in similar terms as the
1st proviso to article 124(2) and article
217(1). It casts an absolute obligation Colt
the President to consult the Chief Justice of
India before transferring a Judge from one
High Court to another. The word "may" in
article 222 (1 ) qualifies the last clause
which refers to the transfer of a Judge and
riot the intervening clause which refers to
consultation with the Chief Justice of India.
The President may or may not transfer a Judge
from one High Court to another. He is not
compelled to do so. But if he proposes to
transfer a Judge, he must consult the Chief
Justice of India before transferring the
Judge. That is in the nature of a condition
precedent to the actual transfer of the Judge.
In other words, the transfer of a High Court
Judge to another High Court cannot become
effective unless the Chief Justice of India is
consulted by the President in behalf of the
proposed transfer. Indeed, it is euphemistic
to talk in terms of effectiveness, because the
transfer of a High Court Judge to another High
Court is unconstitutional unless, before
transferring the Judge, the President consults
the Chief Justice of India.
So far there is no difficulty, because it is nobody’s case
that the President can transfer a High Court Judge without
consulting the Chief Justice of India. Consultation then
being obligatory, the question which arises for
consideration is what exactly does the President have
453
to de in the discharge of his constitutional obligation to
consult the Chief Justice of India in the matter of the
transfer of a High Court Judge? What is, in other words,
the nature of the process involved in what the Constitution
conceives as consultation by the President with the Chief
Justice of India ? What are its minimal requirements ? Is
’It sufficient for the President to apprise the Chief
Justice of ,he proposed transfer and to await the reaction
of the Chief Justice to the proposal ? Or, does consultation
mean something more meaningful than what may in practical
terms be described as ’sounding’ the Chief Justice ? Is the
Chief Justice entitled upon being consulted by the
President, to ask for the relevant data to enable him to
tender his considered opinion on the subject ? These then
are the important matters for consideration.
Article 222(1) which requires the President to consult the
Chief Justice of India is founded on the principle, that in
a matter which concerns the judiciary vitally, no decision
ought to be taken by the executive without obtaining the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 33 of 90
views of the Chief Justice of India who, by training and
experience, is in the best position to consider the
situation fairly, competently and objectively. But there
can be no purposeful consideration of a matter, in the
absence of facts and circumstances on the basis of which
alone the nature of the problem involved can be appreciated
and the right decision taken. It must, therefore, follow
that while consulting the Chief Justice, the President must
make the relevant data available, to him on the, basis of
which he can offer to the president the benefit of his
considered opinion. If the facts necessary to arrive at a
proper conclusion are not made available, to the Chief
justice, be must ask for them because, in casting on the
President the obligation to consult the Chief Justice, the
Constitution at the same time must be taken to have; imposed
a duty on the Chief Justice to express his opinion on
nothing less than a full consideration of the matter on
which he is entitled to be consulted. The fulfilment by the
President, of his constitutional obligation to place full
facts before the Chief Justice and the performance by the
latter, of the duty to elicit facts which are necessary to
arrive at a proper conclusion are parts of the same process
and are complementary to each other. The faithful
observance of these may well earn a handsome dividend useful
to the administration of justice. Consultation within the
meaning of article 222(1), therefore, means full and
effective, not formal or unproductive, consultation.
In Words and Phrases (Permanent Edition, 1960, Volume 9,
page 3) to ’consult’ is defined as ’to discuss something
together, to deliberate’. Corpus Juris Secundum (Volume
16A, Ed. 1956, page 1242) also says that the word ’consult’
is frequently defined as meaning ’to discuss something
together, or to deliberate’. Quoting Rollo v. Minister of
Town and Country Planning(1) and Fletcher v. Minister of
Town and Country Planning(2) Stroud’s Judicial Dictionary
(Volume 1’ Third Edition, 1952, page 596) says in the
context of the expression " consultation with any local
authorities" that "Consultation means
(1) [1948] 1 All E.R. 13 C.A.
(2) [1947] 2 All E.R. 946.
4 54
that, on the one side, the Minister must supply sufficient
information to the local authority to enable them to tender
advice, and, on the other hand, a sufficient opportunity
must be given to the local authority to tender advice".
Thus, deliberation is the quintessence of consultation.
That implies that each individual case must be considered
separately on the basis of its own facts. Policy transfers
on a wholesale basis which leave no scope for considering
the facts of each particular case and which are influenced
by one-sided governmental considerations are outside the
contemplation of our Constitution.
It may not be a happy analogy, but it is commonsense that he
who wants to ’consult’ a doctor cannot keep facts up his
sleeve. He does so at his peril for he can receive no true
advice unless he discloses facts necessary for diagnosis of
his malady. Homely analogies apart, which can be
multiplied, a decision of the Madras High Court in R.
Pushpam & Anr. v. Stale of Madras(1) furnishes a good
parallel. section 43(b), Madras District Municipalities Act,
1920, provided that for the purpose of election of
Councillors to a Municipal Council, the Local Government
’after consulting the Municipal Council’ may determine the
wards in which reserved seats shall be set apart. While
setting aside the reservation made in respect of one of the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 34 of 90
wards on the ground that the Local Government had failed to
discharge its statutory obligation of consulting the
Municipal Council, Justice K. Subba Rao, who then adorned
the Bench of the Madras High Court, observed : "The word
’consult’ implies a conference of two or more persons or an
impact of two or more minds in respect of a topic in order
to enable them to evolve a correct, or at least, a
satisfactory solution." In, order that the two minds may be
able to confer and produce a mutual impact, it is essential
that each must have for its consideration full and identical
facts, which can at once constitute both the source and
foundation of the final decision.
In Chandramouleshwar Prasad v. Patna High Court & Ors. (2) a
question arose in an article 32 petition whether there was
due compliance with article 233(1) of the Constitution which
provides. that appointments of persons to be, and the
posting and promotion of,, District Judges in any State
shall be made by the Governor of the State "in consultation
with the High Court" exercising jurisdiction in relation to
such State. While holding that a Government notification
appointing the petitioner as an officiating District and
Sessions Judge was in violation of article 233, a
Constitution Bench of this Court observed
"Consultation or deliberation is not complete
or effective before the parties thereto make
their respective points of view known to the
other or others and discuss and examine the
relative merits of their views. If one party
makes a proposal to the other who has a
counter proposal in his mind which is not
communicated to the proposer the direction to
give effect to the counter proposal without
anything more,
(1) AIR 1953 Mad 392.
(2) [1970] 2 SCR 666.
45 5
cannot be said to have been issued after
consultation." (pages 674-675).
This then, in my judgment, is the true meaning and content
of consultation as envisaged by article 222(1) of the
Constitution. After an effective consultation with the
Chief Justice of India, it is open to the President to
arrive at a proper decision of the question whether a Judge
should be transferred to another High Court because, what
the Constitution requires is consultation with the Chief
Justice, not his concurrence with the proposed transfer.
But it is necessary to reiterate what Bhagwati and Krishna
Iyer JJ. said in Shamsher Singh (supra) that in all
conceivable cases, consultation with the Chief Justice of
India should be accepted by the Government of India and that
the Court will have an opportunity to examine if any other
extraneous circumstances have entered into the verdict of
the executive if it departs from the counsel given by the
Chief Justice of India. "In practice the last word in such
a sensitive subject must belong to tile Chief Justice of
India, the rejection of his advice being ordinarily regarded
as prompted by oblique considerations vitiating the order."
(page 873). It is hoped that these words will not fall on
deaf ears and since normalcy has now been restored, the
differences, if any, between the executive and the judiciary
will be resolved by mutual deliberation each, party treating
the views of the other with respect and consideration.
One of the, learned Judges of the Gujarat High Court, J. B.
Mehta, J., has invalidated the order of transfer on the
additional ground that it was made in violation of the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 35 of 90
principles of natural justice, a consideration which in my
opinion is out of place in the scheme of article 222(1). It
is true that the, frontiers of natural justice principles
are ever-expanding and judges are becoming increasingly
conscious of the range of possibilities of those principles.
They are anxious to impress the fundamentals of fair
procedure on all those who exercise authority over others,
statutory or otherwise. ’Natural justice’ has a long
history, one of the outstanding instances being Bentley’s
case (1) in which the Court of King’s Bench held in 1723,
that the Cambridge University could not deprive a great but
unconventional scholar of his degrees without hearing his
explanation for his misconduct. In Ridge v. Baldwin(2) the
House of Lords voided the dismissal of a chief constable for
unfitness, on the ground that no hearing was given to him.
This Court in State of Orissa v. Dr. (Miss) Binapani Dei(3)
and A. K. Kraipak v. Union of India(4) stretched the
doctrine to further limits. But as observed by Hegde J: in
Kraipak(4), "the aim of the rules of natural justice is to
secure justice or to put it negatively to prevent
miscarriage of justice....... What particular rule of
natural justice should apply to a given case must depend to
a great extent on the facts and circumstances of that case,
the frame-work of the law under which the enquiry is held
and the constitution of the Tribunal or body of persons
appointed for that purpose. Whenever a complaint is made
before a court that some principle of natural
justice had been contravened the
(1) R. V. university of Cambridge (1723) 1 Str. 557.
(2) [1964] A.C. 40
(3) AIR 1967 SC 1269.
4) AIR 1970 SC 150
4 5 6
court has to decide whether the observance of that rule was
necessary for a just decision of the facts of that case."
(pages 156-157). The underlying principle thus is that
drastic powers are intended to be exercised fairly, and
fairness demands an opportunity at least to know and meet
the charge : "Absolute discretion, like corruption, marks
tile beginning of the end of liberty."(1)
Article 222(1) postulates fair play and contains built-in
safeguards in the interests of reasonableness. In the first
place, the power to transfer a High Court Judge can be
exercised in public interest only. Secondly, the President
is under an obligation to consult the Chief Justice of India
which means and requires that all the relevant facts must be
placed before the Chief Justice. Thirdly, the Chief Justice
owes a corresponding duty, both to the President and to the
Judge who, is proposed to be transferred, that he shall
consider every relevant fact before he tenders his opinion
to the President. In the discharge, of this constitutional.
obligation, the Chief Justice would be within his rights,
and indeed it is his duty whenever necessary, to elicit and
ascertain further facts either directly from the Judge
concerned or from other reliable sources. The executive
cannot and ought not to establish rapport with the Judges
which is, the function and privilege of the Chief Justice.
In substance and effect, therefore, the Judge concerned
cannot have reason to complain of arbitrariness; or unfair
play, if the due procedure is followed. I must add that Mr.
Seervai did not argue that the order of transfer is bad for
non-compliance with the principles of natural justice.
This concludes the discussion on the, points involved in the
appeal. Unusually, in a matter of this importance, it is
needless to work out the final order because at the end of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 36 of 90
the, arguments, on August 26, 1977, the appellant and
respondent 1 arrived at a settlement in the following terms
:
"On the facts and circumstances on record the
present government do not consider that there
was any justification for transferring Justice
Sheth from Gujarat High. Court and propose to
transfer him back to that High Court.
On this statement being made by the learned
Attorney General, Mr. Seervai, Counsel for
Respondent No. 1 (Justice S.H. Sheth),
withdraws the writ petition with leave of the
Court."
In view of this settlement, we passed the
following order on that day-
"We have heard the learned Attorney-General
and Mr. Seervai fully on the various points
arising in this appeal. We will deal with the
arguments of the learned counsel later by a
considered judgment or judgments. For the
present we will only say that since we are
informed that the parties to the appeal have
arrived at a settlement, the appeal shall
stand disposed of in terms of that
settlement."
(1) Douglas J. dissenting in New York v.
United States, 342 U. S. 882, 8 84 (1951)
457
To-day we have given our judgments in
pursuance of this order.
BHAGWATI, J. This is an unusual case where a Judge of a High
Court has been compelled to seek justice in a court of law
against an unwarranted executive action. It raises
questions of great constitutional significance affecting the
entire, High Court Judiciary. Can a Judge of a High Court
be transferred to an-other High Court by the President,
which in effect means by the Central Government, under Art.
222, clause (1) of the Constitution without his consent ?
What is the true interpretation of this constitutional
clause; does it necessarily imply such consent ? And what is
the meaning and effect of the constitutional requirement
that such transfer may be made by the President "after
consultation with the Chief Justice of India" ? What is the
scope and content of this consultation and what are its
basic essentials ? These are the questions that arise for
determination in this appeal and they have been argued
before us with great passion and fervor, not ordinarily seen
in humdrum and routine cases, since they admittedly raise
issues of the gravest character affecting the independence
of the judiciary which is one of the cardinal features of
our Constitution sustaining the rule of law and infusing it
with life and meaning. The decision of these questions may
not be strictly necessary for. disposing of this appeal,
since at the close of the arguments an agreed formula was
put forward on behalf of the parties and in pursuance of
this formula, the first respondent withdrew his petition,
but having regard to the great constitutional importance of
these questions, I think the Court ought to express its
opinion upon them, now that they have been raised and fully
argued before us.
The first respondent Mr. Justice S. H. Sheth, who was a
Judge of the Gujarat High Court ’since 23rd April, 1969,
was, by a Presidential Order dated 27th May, 1976,
transferred "as Judge of the High Court of Andhra Pradesh
with effect from the date he assumes charge of his office".
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 37 of 90
The order was purported to be made by the President in
exercise of the powers conferred under Art. 222, clause (1)
of the Constitution. The first respondent immediately filed
Special Civil Application No. 911 of 1976 in the High Court
of Gujarat challenging the validity of this order and he
joined the Union of India as well as the Chief Justice of
India as party respondents to the petition. The petition
was admitted and rule issued by Mr. Justice D. A. Desai on
16th Julie, 1976. The first respondent did not apply for
interim relief as he did not wish to continue to function as
a Judge of the Gujarat High Court under an interim order
made by the Court, but he had filed the petition pro boon
public to assert and vindicate the independence of the
Judiciary, since his was part of a mass transfer of 16 High
Court Judges and it was said that more transfers were
imminent. The petition was more in the nature of public
interest litigation than private litigation for personal
gain. The 1st respondent merely asked for expedition and
the hearing of the petition was accordingly fixed on 26th
July, 1976. The questions raised in the petition being of
great importance, the Chief Justice of the Gujarat High
Court constituted
458
a Special Bench consisting of Mr. Justice J. B. Mehta, Mr.
Justice A. D. Desai and Mr. Justice D. A. Desai, three of
the senior most judges of the High Court to hear the
petition. The hearing commenced on 30th August, 1976 and
the argument of counsel for the 1st respondent continued for
the whole day. On the next day, before the argument was
resumed, a most extraordinary objection was raised by Mr.
Raman, the then Additional Solicitor General, on behalf of
the Union of India, which is the appellant before us. He,
was also appearing for the ’second respondent, the Chief
Justice of India, but the objection raised by him was only
on behalf of the appellant. And that objection was that the
appellant had heard that some correspondence had taken place
between the Chief Justice of India and some of the Judges of
the Gujarat High Court, including the members of the Special
Bench, in regard to transfers of High Court Judges and that
the case should not, therefore, be heard by the Judges
constituting the Special Bench. Since the objection was
taken orally and was not in writing and Mr. Raman wanted
further instructions from the Government of India, the
hearing was adjourned to 7th September, 1976. On the
adjourned date Mr. Raman was not present, but the junior
counsel stated that the Government of India was pressing the
objection, to which an answer was made on behalf of the 1st
respondent that the objection could not be entertained as it
was not put in writing and it was not disclosed as to what
was the source of knowledge of the Government of India in
regard to the correspondence supposed to have taken place
between the Judges of the Gujarat High Court and the Chief
Justice of India. Since it was stated on behalf of the
Government of India in the course of the arguments that it
had no knowledge of the contents of this correspondence, the
Special Bench adjourned the hearing of the case and on 10th
September, 1976 made an order stating that though the letter
addressed by the Judges of the High Court, including, the
members of the Special Bench,-to the Chief Justice of India
was a highly confidential communication, they and their
colleagues who, were signatories to that letter, had no
objection if the Chief Justice of India, who was the
addressee of the letter, desired to produce it. The
privilege of confidentiality was thus, in all fairness,
withdrawn by the Judges of the High Court, who were
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 38 of 90
signatories to this letter, but the Chief Justice of India
chose not to produce it at the adjourned hearing of the
petition on 20th September, 1976. And yet on the basis of
this letter, the Government of India, through its counsel,
maintained its objection that the Judges constituting the
Special Bench should not hear the case and filed a written
submission to that effect. There was considerable argument
before the Special Bench in regard to this objection, but it
was overruled and the Special Bench. decided to proceed with
the hearing of the petition on merits. The learned Attorney
General, appearing on behalf of the Government of India, did
not press this objection before us. and it is, therefore,
not necessary for me to consider it, but I cannot help.
remarking that it was improper on the part of the Government
of India to raise such an objection and it betrayed lack of
responsibility on the part of those who instructed counsel
to do so. In the first place,, it passes one’s
comprehension how the Government of India could. possibly
raise an objection against three Judges of the Special Bench
45 9
hearing the petition against it, when the Judges themselves
did not feel embarrassed in hearing it. It can safely be
presumed that a High Court Judge who is the holder of a
highly responsible office under the Constitution and whose
function it is, by the terms of his oath, to administer
justice "without fear or favour", would be sensitive enough
to realise that justice must not only be done but must also
appear to be done and if he feels, in the slightest measure,
that by reason of any conscious bias or prejudice he may not
be able to hold the ’scales of justice even or give an
appearance of doing so, he would not take up the case. No
High Court Judge worthy of his office would knowingly permit
any cloud of bias or prejudice to darken his understanding
or to-influence his decision. This is the bask postulate on
which rests the magnificent edifice of our system of
administration of justice and no one should be more
conscious of it, none should have greater faith in the
impartiality of our superior judiciary, than the Government,
be it Central or State. The Government of India should have
had the fullest confidence that if the Judges constituting
the Special Bench at all felt that they would not be able to
do justice between the 1st respondent and the Government of
India "without fear or favour" or to use the words of Edmund
Burke, adopt the "cold neutrality of an impartial Judge",
they would have themselves declined to hear the petition.
The objection raised by the Government of India amounted to
nothing short of a suggestion that it did not have
confidence in the impartiality of its own judges. Moreover,
the Act of the Government of India was all the more
reprehensible because the objection raised by it was based
on the most flimsy and tenuous material which it would not
have required a moment’s hesitation to dismiss as unworthy
of consideration. The objection was based solely on the
letter addressed by some or the judges of the High Court to
the Chief Justice of India which, according to the
Government of India, it had not seen and of the contents of
which, it was admittedly not aware. It is difficult to
appreciate how even without knowing what were the contents
of this letter, the Government of India could raise an
objection on the basis of such letter. It was to my mind an
act of impropriety on the part of the Government of India.
It would have been liable to the strongest condemnation even
if it had proceeded from a private party and much more so,
must it be regarded when the Government of India is party to
it. I may also observe that when the Government of India
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 39 of 90
raised an objection against the judges of the Special Bench
hearing the petition on the basis of the letter addressed by
them to the Chief Justice of India, it would have been
better if the Chief Justice of India had produced the
letter; particularly when the privilege of confidentiality
was withdrawn by its authors, for that would have helped to
clear the position of the three judges, instead of leaving
them in a situation where there might be some ’scope for
uninformed criticism arising out of ignorance of the true
state of affairs. The fact, however, remains that the Chief
Justice of India did not produce the letter and knowing full
well that there was nothing in the letter which would in any
way effect their impartiality or embarrass ’them in
discharging their judicial function, the three judges
constituting the Special Bench rejected the objection and
proceeded to consider the merits of the petition.
460
The impugned order of transfer was challenged in the
petition principally on four grounds :
(i) that it was in violation of Art. 222,
cl. (1) of the Constitution as it was passed
without the consent of the petitioner; on a
true construction of Art. 222, cl. (1) such
consent must be necessarily implied in that
Article;
(ii) that it was invalid because effective
consultation with the Chief Justice of India
was a condition precedent to the exercise of
the power of the President to pass an order of
transfer under Art. 222, cl. (1) and the
condition precedent had not been satisfied;
(iii) that it was invalid as it had been
passed in breach of assurance given on behalf
of the Government of India on the floor of
Parliament on the faith of which the 1st
respondent had accepted judgeship, with the
result that the Government was bound by a
promissory estoppel; and
(iv) that it was invalid because it militated
against public interest.
Though ground (iii) was urged before the Special Bench and
it was unanimously negatived, it was not reiterated before
us on behalf of the 1st respondent and hence we need not say
anything about it. So also ground (iv) was argued before
the Special Bench and it was urged that the transfer of the
1st respondent was by way of punishment for a judgment
delivered by him against the Government and was not in
public interest for which alone an order of transfer could
be made by the President under Article 222, cl. (1), but
this contention too was not pressed before us on behalf of
the 1st respondent as a ground for invalidating the order of
transfer and it is, therefore, not necessary to consider it.
One thing is, however, certain that the power to transfer a
Judge from one High Court to another under Art. 222, clause
(1) can be exercised only in public interest and it would be
gross abuse of power to displace him from his High Court and
transfer him to another High Court by way of punishment
because he has decided cases against the Government. It is
a power conferred on the President to be exercised in
furtherance of public interest and not by way of
victimisation for inconvenient decisions given by a High
Court Judge. Here, on the record, it does appear that the
transfer of the 1st respondent was punitive in character and
was not prompted by considerations of public interest. It
was admitted by part of mass transfers of 16 High Court
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 40 of 90
Judges and though a suggestion was made by the Government of
India in its affidavit in reply that the transfers were made
with a view to strengthening national integration by cutting
at the barrier’s of regionalism and parochialism, the
Government of India did not choose to disclose,, the
principle on which these 16 High Court Judges were picked
out for
461
being transferred. It is indeed strange that the Government
of India should have selected for transfer, by and large,
those High Court Judges who had decided cases against the
Government during the emergency. I should have thought that
when the 1st respondent averred in so many terms that his
transfer was by way of punishment for deciding against the
Government; the Government of India in its affidavit in
reply should not have remained content merely with denying
this averment, but should have frankly and candidly come
forward with the reasons for which the transfer was affected
and if it was for achieving national integration, what was
the basis on which the 1st respondent was picked out for the
purpose of transfer. That was the least which the
Government of India could have done when it was dealing with
the holder of a high constitutional office like a High Court
Judge. But unfortunately, the Government of India adopted a
’high and mighty’ attitude and staked its defence solely on
the claim to unfettered power to transfer a High Court Judge
under Article 222, clause (1) and that does lend credibility
to the argument that the transfer was not made in public
interest, but was by way of punishment with a view to
bringing pressure on High Court Judges to fall in line with
the views of the Government. it is also difficult to
understand why the news about the transfers of High Court
Judges ’should have been blacked out, if the transfers were
really in public interest. If the transfers were really in
the interest of national integration, the news about the
transfers should have been given the widest publicity and
they should not have been withheld from the press. Moreover
the Government of India admitted before us at the close of
the arguments that the transfer of the 1st respondent was
not justified. But, as pointed out above, it is not
necessary to come to a definite finding whether the transfer
of the 1st respondent was not in public interest since that
contention was not pressed before us.
So far as ground (i) is concerned, Mr. Justice A. D. Desai
held that, on a true construction of Art., 222, cl. (1), a
High Court Judge could not be transferred without his
consent and since in, the present case the transfer of the
1st respondent was admitted without his consent, the order
of transfer was invalid. Mr. Justice J. B. Mehta and Mr.
Justice D. A. Desai, on the other hand, took a different
view and observed that the necessity of consent could not be
implied in Art. 222, cl. (1) and want of consent on the
part of the 1st respondent did not have the effect of
invalidating the order of transfer against him. All the
three Judges were, however, agreed in regard to ground (ii)
and they held that effective consultation with the Chief
Justice of India was a condition precedent to the exercise
of the power to pass an order of transfer under Art. 222,
cl. (1) and since there was no material on record to show
that there was such effective consultation with the Chief
Justice of India, the condition precedent was not satisfied
and the order of transfer was bad. The Special Bench, on
this view, allowed the petition and struck down the order of
transfer as invalid. This order of the Special Bench is
challenged in the present appeal preferred after obtaining
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 41 of 90
certificate from the High
462
It will be apparent from what is stated above that only
grounds (i) and (ii) survive for consideration in this
appeal. I shall presently examine these grounds, but before
I do so, a few preliminary remarks in regard to the
position of a High Court Judge under the constitution would
not be inapposite. Chapter V in Part VI of the Constitution
deals with High Courts in the States. Art. 214 provides
that there shall be a High Court for each State and under
Art. 216, it is laid down that every High Court shall
consist of a Chief Justice and such other judges as the
President may from time to time deem it necessary to
appoint. The mode of appointment and conditions of. the
office of a High Court Judge are provided in Art. 217 and
cl. (1) of that Article, so. far as material, reads as
follows
"217(1) Every Judge of a High Court shall be
appointed by the President by warrant under
his band and seat after consultation with the
Chief Justice of India, the Governor of the
State, and, in the case of appointment of a
Judge other than the Chief Justice, the Chief
Justice of the High Court, and shall hold
office, in the case of an additional or acting
Judge, as provided in article 224, and in any
other case, until he attains the age of sixty-
two years Provided that-
(a) a Judge may, by writing under his band
addressed to the President, resign his office;
(b) a Judge may be removed from his office
by the President in the manner provided in
clause (4) of article 124 for the removal of a Judge of th
e Supreme Court;
(c) the office of a Judge shall be vacated
by his being appointed by the President to be
a Judge of the Supreme Court or by his being
transferred by the Preston to any other High
Court within the territory of India."
Article 219 provides that every person appointed to be a
Judge of a High Court shall, before he enters upon As
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 forms set out for the purpose
in the Third Schedule. That form is Form VIII and it runs
inter alia as follows : "I A. B. having been appointed
Chief Justice (or a Judge) of the High Court at (or
of)...... do swear in the name of God/solemnly affirm
that...... I will truly and faithfully and to the best of my
ability, knowledge and judgment perform the duties of.my
office without fear and favour, affection or illwill." It
may be pointed here that the words "without fear or favour".
which ,are to be found in the present Form of oath in Form
VIII did not figure in the form of oath prescribed in
Schedule IV to the Government of India Act, 1935 and they
were an addition made by the Constitution. These words, of
course, do not add anything to the nature of the judicial
function to be discharged by the High Court Judge because,
even without them, the High Court Judge
463
would, by the very nature of the judicial function, have to
perform the duties of his office without fear or favour, but
they serve to highlight two basic characteristics of the
judicial function, namely, independence and impartiality.
Two propositions clearly emerge on a consideration of these
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 42 of 90
provisions read in the context of the constitutional scheme.
The first is that the appointment contemplated under these
provisions is appointment of a person as a Judge of a
particular High Court and not as a Judge simpliciter. There
is no All-India Cadre of High Court Judges. Secondly, a
Judge of the High Court is not a Government servant, but he
is the holder of a constitutional office. He is as much
part of the State as the executive Government. The State
has in fact three organs, one exercising executive power,
another exercising legislative power and the third
exercising judicial power. Each is independent and supreme
within its allotted sphere and it is not possible to say
that one is superior to the other. The High Court,
constituted of the Chief Justice and other Judges, exercises
the judicial power of the State and is coordinate in
position and status with the Governor aided and advised by
the Counsel of Ministers, who exercises the executive power
and the Legislative Assembly together with the Legislative
Council, if any, which exercises the legislative power of
the State. Plainly and unquestionably, therefore, a High
Court Judge is not subordinate either to the executive or to
the legislature. It would, indeed, be a constitutional
heresy to so regard him. He has a constitutional function
to discharge, which includes adjudication of the question
whether the executive or the legislature has over stepped
the limits of its power under the Constitution. No doubt
Art. 217, cl. (1) provides for appointment of a person to
the office of a High Court Judge by the President, which
means in effect and substance the Central Government, but
that is only laying down a mode of appointment and it does
not make the Central Government an employer of a High Court
Judge. In fact a High Court Judge has no employer : he
occupies a high constitutional office which is coordinate
with the executive and the legislature.
Now the independence of the judiciary is a fighting faith of
our Constitution. Fearless justice is a cardinal creed of
our founding document. It is indeed a part of our ancient
tradition which has produced great judges in the past. In
England too, from where we have inherited our present system
of administration of justice in its broad and essential
features, judicial independence is prized as a basic value
and so natural and inevitable it has come to be regarded and
so, ingrained it has become in the life and thought of the
people that it is now almost taken for granted and it would
be regarded an act of insanity for any one to think
otherwise. But this has been accomplished after a long
fight culminating in the Art of Settlement. 1688. Prior to
the enactment of that Act, a Judge in England held tenure at
the pleasure of the Crown and the Sovereign could dismiss a
Judge at his discretion, if the judge did not deliver
judgments to his liking. No less illustrious a judge then
Lord Coke was dismissed by Charles I for his glorious and
courageous refusal to obey the King’s writ de non Procedendo
rago inconsulto contending him to step or to delay pro-
ceedings in his court. The Act of Settlement, 1688 put it
out of the
464
power of the Sovereign to dismiss a judge at pleasure by
substituting ’tenure during good behaviour’ for ’tenure at
pleasure,. The Judge could then say, as did Lord Bowen so
eloquently :
"These are not days in which any English Judge
will fail to assert his right to rise in the
proud consciousness that justice is
administered in the realms of Her Majesty the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 43 of 90
Queen, immaculate, unspotted, and unsuspected.
There is no human being whose smile or frown,
there is no Government, Tory or Liberal, whose
favour or disfavour can start the pulse of an
English Judge upon the Bench, or move by one
hair’s breadth the even equipoise of the
scales of justice."
The framers of our Constitution were aware of these
constitutional developments in England and they were
conscious of our great tradition of judicial independence
and impartiality and they realised that the need for
securing the independence of the judiciary was even greater
under our Constitution than it was in England, because ours
is a federal or quasi-federal Constitution which confers
fundamental rights, enacts other constitutional limitations
and arms the Supreme Court and the High Courts with the
power of judicial review and consequently the Union of India
and the States would become the largest single litigants
before the Supreme Court and the High Courts. Justice, as
pointed out by this Court in Shamsher Singh v. State of
Punjab,(1) can become "fearless and free only if
institutional immunity and autonomy are guaranteed". The
Constitution-makers, therefore, enacted several provisions
designed to, secure the independence of the superior
judiciary by insulating it from executive or legislative
control, I shall briefly refer to these provisions to show
how great was the anxiety of the constitution-makers to
ensure the independence of the superior judiciary and with
what meticulous care they made provisions to that end.
Every judge of a High Court is entitled to hold office until
he attains the age of 62 years and unless he voluntarily
resigns his office or is removed from his office by the
President in the manner provided in clause (4) of Article
124 by a procedure analogous to impeachment for proved
misbehavior or incapacity or he is appointed to be a judge
of the Supreme Court or is transferred to another High
Court, he cannot be removed from office. His security of
tenure upto the age, of 62 years is guaranteed. Vide
Article 217, clause (1). The salary and allowances of a
High Court Judge are charged on the Consolidated Fund of the
State under Article 202, clause (3) (d) so that under
Article 203 clause (1) they are not subject to the vote of
the Legislative Assembly, the object being that the
legislature should not be in a position to effect the
independence of the High Court judiciary by exercising
pressure through refusal to vote the salary and other
allowances. Similarly, the pension payable to a High Court
Judge is charged on the Consolidated Fund of India under
Article 112, clause (3) (d) (iii) so that under Article 113,
(1) [1975]1 S.C.R. 814, at 876.
465
clause (1) it is not required to be submitted to the vote of
Parliament ,and it is put out of the power of Parliament to
refuse to vote pension and thus hold out a threat of injury
to a High Court Judge. Further, under Article 221, clause
(2) it is provided that "neither the allowances of a Judge
nor his rights in respect of leave of absence or pension
shall be varied to his disadvantage after his appointment".
Then there is Article 211 which prohibits any discussion in
the Legislature, of a State with respect to the conduct of a
Judge of a High Court in the discharge, of his duties. The
High Court Judge is insulated from fear of criticism of his
judicial acts by the Legislature which is essentially a
political assembly. This would enable a High Court Judge to
act fearlessly in administering Justice in the discharge of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 44 of 90
his duties. Article 215 confers upon the High Court a power
to punish for contempt of itself and thus protect itself
against interference in the course of administration of
justice from whatever source it may come. Form VIII in the
Third Schedule which is the form of oath prescribed for a
Chief Justice or a Judge of a High Court also emphasises the
absolute necessity for judicial independence if the oath is
to be observed, because it requires the Judge to swear that
he will perform the duties of his office "without fear or
favour, affection of ill-will". The independence of the
High Court is also sought to be, reinforced by Article 229
which provides that appointments of officers and servants
shall be made by the Chief Justice or such other Judge or
officer as he may appoint, so that there is not even
indirect interference with judicial administration by the
executive. And hovering over all these provisions like a
brooding omnipresence is Article 50 which lays down, as a
Directive Principle of State Policy, that the State shall
take steps to separate the judiciary from the executive in
the public services of the State. This provision, occurring
in a chapter which has been described by Granville Austin as
"the conscience of the Constitution" and which embodies the
social philosophy of the Constitution and its basic
underpinnings and values, plainly reveals, without any scope
for doubt or debate, the intent of the constitution-makers
to immunise the judiciary from any form of executive control
or interference.
But this is not all. There are also other provisions in the
Constitution which clearly disclose the anxiety of the
constitution-makers to secure the independence of the
judiciary. Chapter VI in Part VI of the Constitution deals
with subordinate courts and, as pointed out by this Court in
the State of West Bengal and Anr. v. Nriperdranath
Bagchi(1), Articles 233 to 237 which occur in this Chapter
are designed to make the High Court the sole custodian of
control over the Subordinate Judiciary, except in so far as
exclusive jurisdiction is conferred upon the Governor in
regard to appointment, posting and promotion of District
Judges. The question of interpretation of these Articles
arose in Nripendranath Bagchi’s case(1) where the point at
issue was as to which authority is entitled to exercise
disciplinary jurisdiction over a member of Subordinate
Judiciary-the High Court or the State Government. This
Court traced the history relating to the Subordinate
Judiciary and observed that "the history which lies behind
the enact-
(1) [1966] 1 S.CR. 771.
6-930SCI/77
466
ment of these Articles indicates that control was vested in
the High Court to effectuate a purpose, namely, the securing
of the independence of the Subordinate Judiciary and unless
it included disciplinary control as well, the very object
would be frustrated" and held that disciplinary jurisdiction
is comprehended within the broad sweep of ’control’ vested
in the High Court under Article 235 and hence the High Court
alone has disciplinary control over the, Subordinate
Judiciary. Then again, in the State of Assam v. Ranga
Mahmmad & Ors.,(1) a question arose whether transfer of a
District Judge is within the exclusive power of the High
Court or the State Government is entitled to make such
transfer. The determination of this question depended upon
the true meaning of the word ’posting’ in Article 233. Does
’posting’ Mean stationing a person at a place so as to
include transfer or is it limited only to initial posting on
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 45 of 90
appointment or promotion to a vacancy in the cadre. If it
is the former, transfer would be within the power of the
Governor under Article 233, but if it is the latter,
transfer would cc necessarily be outside the power of the
Governor and fall to be made by the High Court as part of
the control vested in it by Article 235". This Court
preferred the narrower meaning, since it was more in accord
with the constitutional policy of securing the independence
of the Subordinate Judiciary and held that transfer of a
District Judge is "a matter of control of District Judges
which is vested in the High Court" under Article 235. It is
apparent that under Article 233 to 237 the control over the
Subordinate Judiciary in respect of transfer and disci-
plinary action is vested in the High Court to the exclusion
of the State Government for a purpose, and that purpose is
the securing of judicial independence. That is why Krishna
Iyer, J., speaking on behalf of himself and me, pointed out
in Shamsher Singh v. State of Punjab (supra), "the exclusion
of executive interference with the Subordinate Judiciary,
i.e., grass-roots justice, can prove a teasing illusion if
the control over them is vested in two masters, viz., the
High Court and the Government, the latter being otherwise
stronger". It will thus be seen that even with regard to
the Subordinate Judiciary the framers of the Constitution
were anxious to secure that it should be insulated from
executive interference and once appointment of a Judicial
Officer is made, his subsequent career should be under the
control of the High Court and he should not be exposed to
the possibility of any improper executive pressure. If such
was the concern of the constitution-makers in regard to the
independence of the Subordinate Judiciary, their anxiety to
secure the independence of the superior judiciary could not
have been any the less and it is this thought that must
animate and guide our interpretation of Article 222, clause
(1) which confers on the President power to transfer a Judge
from one High Court to another.
With these prefatory observations I may now go straight to
the interpretation of Art. 222, clause (1). Article 222
consists of two clauses which read as follows
"22(1) The President may, after consultation
with the Chief Justice of India, transfer a
Judge from one High Court to any other High
Court.
(1) [1967] 1 S.C.R. 454.
467
(2) When a Judge has been or is so
transferred, he shall during the period he
serves, after the commencement of the
Constitution (Fifteenth Amendment) Act, 1963,
as a Judge of the other High Court, be
entitled to receive in addition to his salary
such compensatory allowance as may be deter-
mined by Parliament by law and, until so
determined, such compensatory allowance as the
President may by order fix."
There was an original clause (2) in Article 222 which was in
almost identical terms. It was omitted by the Constitution
(Seventh Amendment) Act, 1956 but it was again introduced in
its present form by the Constitution (Fifteenth Amendment)
Act, 1963. It provides for payment of compensatory
allowance to a Judge who has been transferred from one High
Court to another. This clause has no material bearing on
the controversy in the present appeal, but it does postulate
that transfer of a High Court Judge would inflict an injury
on him for which, in all fairness, compensatory allowance
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 46 of 90
should be paid to him. Now, according to the plain natural
meaning of the words used in clause (1), it does appear that
the only limitation on the exercise of the power of the
President to transfer a Judge from one High Court to another
is that there must be previous consultation with the Chief
Justice of India and there is no explicit requirement that
the transfer may be made by the President only with the
consent of the Judge. But the question is : can the
requirement of consent be read into this clause by necessary
implication ? That would depend on the interpretation of the
language of this clause in the light of the well recognised
canons of construction. To that question I will now turn.
Now, it is undoubtedly true that where the language of an
enactment is plain and clear upon its face and by itself
susceptible to only one meaning, then ordinarily that
meaning would have to be given by the Court. In such a case
the task of interpretation can hardly be said to arise. But
language at best is an imperfect medium of expression and a
variety of significations may often lie in a word of
expression. It has, therefore, been said that the words of
a statute must be understood in the sense which the
legislature has in view and their meaning must be found not
so much in a strictly grammatical or etymological propriety
of language, nor in its popular use, as in the subject or
the occasion on which they are used and the object to be
attained. It was said by Mr. Justice Holmes in felicitous
language in Town v. Eisner(1) that "a word is not a crystal,
transferant and unchanged; it is the skin of a living
thought and may vary greatly in colour and content according
to the circumstances and the time in which it is used". The
words used in a statute cannot be read in isolation; their
colour and content are derived from their context and,
therefore, every word in a statute must be examined in its
context. And when I use word ’context’, I mean it in its
widest sense "as including not only other enacting
provisions of the same statute but its preamble, the
existing state of the law, other statutes in pari materia
and the mischief which-the statute was intended to remedy".
The context is of the greatest importance in the
interpretation of the words used in a statute. "It is quite
true" pointed out by Judge Learned Hand in Helvering v.
(1) 245 U.S. 418.
468
Gregory,(1) "that as the articulating of a statute increase,
the room for interpretation must contract; but the meaning
of a sentence may be more than that of the separate words,
as a melody is more than the notes, and no degree of
particularity can ever obviate recourse to the setting in
which all appear, and which all collectively create." Again,
it must be remembered that though the words used are the
primary, and ordinarily the most reliable, source of
interpreting the meaning of any writing, be it a statute, a
contract, or anything else, it is one of the surest indexes
of a mature and developed jurisprudence not to make a
fortress out of the dictionary, but to remember that a
statute always has some purpose or object to accomplish,
whose sympathetic and imaginative discovery, is the surest
guide to its meaning. The literal construction should not
obsess the Court, because it has only prima facie
preference, the real object of interpretation being to find
out the true instant of the law maker and that can be done
only by reading the statute as an organic whole, with each
part throwing light on the other and bearing in mind the
rule in Heydon’s case(2) which requires four things to be
"discerned and considered" in arriving at the real meaning :
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 47 of 90
(1) what was the law before the Act was passed; (2) what was
the mischief or defect for which the law had not provided;
(3) what remedy Parliament has appointed; and (4) the reason
of the remedy. There is also another rule of interpretation
which is equally well settled and which seems to follow as a
necessary corollary, namely, where the words, according to
their literal meaning-"produce an inconsistency, or an
absurdity or inconvenience so great as to convince the Court
that the intention could not have been to use them in their
ordinary signification", the Court would be justified in
"putting on them some other signification, which, though
less proper, is one which the Court thinks the words will
bear". Vide River Wear Commissioners v. Adamson(3). It is
in the light of these principles of interpretation that I
must proceed to consider what is the true meaning and effect
of cl. (1) of Article 222: whether it permits transfer of a
Judge from one High Court to another, irrespective of his
consent.
Now, transfer of a Judge may be consensual, i.e., with
consent, or compulsory, i.e., without consent, and the word
’transfer’ according to its plain natural meaning would
include both kinds of transfer. But the question is
whether, having regard to the manifest intent of the
constitution-makers to secure the independence of the
superior Judiciary and the context and the setting of the
provision in which the word ’transfer’ occurs, should it be
interpreted in its wider sense to include compulsory
transfer as well as consensual transfer, or it should be
given a narrower meaning limited only to consensual
transfer. There are, in my opinion, two weighty reasons why
the more limited meaning should be preferred and ’transfer’
should be read as confined to consensual transfer.
In the first place, it cannot be seriously disputed that the
transfer of a Judge from one High Court to another would
ordinarily inflict personal injuries on him. He would be
displaced from his original
(1) 69 F (2) (d) 809.
(2) (1584) 3 W. Rep. 16; 76 E.R. 637.
(3) (1876-77) App. Cs. 743 at 764.
469
home where he might have spent a major part of his life and
he might have to maintain two establishments involving him
in considerable extra expenditure. This was in fact
admitted by Shri Asoke Sen, the then Minister for Law, in
the course of his speech on the floor of the Lok Sabha on
30th April, 1963 when he said : "-it is very difficult for a
Judge who is rooted to one place to go on transfer so that
in most cases he may have to maintain his family in both the
places and his expenses will increase". The education of
the children of the Judge might also be affected, if not.
disrupted for a time, particularly since the medium of,
Instruction in schools and colleges in most States is the
regional language. The medical facilities also vary from
State to State and the State to which the Judge is
transferred might not have the same quality of medical
services as his home State. So also the climate of the
other State might not agree with the health of the Judge and
he might be put to great hardship and hazard, as for
example, where a Judge who is not accustomed to severe cold
is transferred to the High Court of Jammu & Kashmir or to
the High Court of Himachal Pradesh, or a Judge who is
vulnerable to humid climate is sent to the Calcutta High
Court or to the High Court of Assam. If the Judge’s wife is
engaged in a full time or part time employment in the State,
his transfer to another State might require the wife to give
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 48 of 90
up her employment or the husband to stay apart from his wife
at least for nine months in a year and the same would be
true if the wife has set up or inherited a business.
Furthermore, the transfer would inflict an additional
disability on the Judge, in that, he would be disabled from
practicing not only in the High Court to which he was
originally appointed, but also in the High Court to which he
is transferred so that repeated transfers might prevent him
from practising in a number of High Courts after his
retirement. It would also be highly inconvenient and
expensive to the Judge to go to his home State on auspicious
occasions or in case of death or illness of some close
relative, particularly where he is transferred to a distant
High Court, as happened in the case of a few of the 16
judges picked out for transfer. The compensatory allowance
payable to the Judge in such a case would reimburse him only
in respect of the expenditure on two Establishments, but the
other injuries would, by their very nature, be incapable of
compensation and would cause hardship and suffering to the
Judge and the members of the family. It would, thus, be
seen that the power to transfer a Judge from one High Court
to another is not an innocuous power but it is a power the
exercise of which would almost inevitably inflict injuries
on the Judge who is subjected to such transfer. That is why
Krishna Iyer, J., speaking on behalf of himself and me in
Shamsher Singh’s case (supra), pointed out that "sometimes a
transfer can be more harmful than punishment" and this Court
preferred to give a narrow meaning to the word ’posting’ in
Article 233 so as to take the power of transfer out of the
reach of the executive and vest it exclusively in the High
Court.
Now, it cannot be disputed that, on the terms of Article
222, clause (1), the power of transfer is conferred on the
President, which means in effect and substance the
executive, since the President cannot act save in accordance
with the aid and advice of the council of ministers. If, on
a proper construction of cl. (1) of Article 222, the power
470
of transfer could be exercised by the executive and the High
Court Judge could be transferred without his consent, it
would be a highly dangerous power, because the executive
would then have an unbridled charter to inflict injury on a
High Court Judge by transferring him from the High Court to
which he originally agreed to be appointed to another High
Court, if he decides cases against the Government or deli-
vers judgments which do not meet with the approval of the
executive. That would gravely undermine the independence of
the judiciary, for the High Court Judge would then be
working constantly under a threat that if he does not fall
in line with the views of the executive or delivers
judgments is not to its liking, he would be transferred, may
be to a far-off High Court. It must be remembered that
though, by and large, our Judges (and their number, I am
sure, is quite large) are made of sterner stuff and no
threat of injury, however grave or serious, would deflect
them from doing their duty "without fear or favour", some
judges may, on account of threat of transfer, be induced,
albeit not consciously or deliberately, to do that which
pleases the executive to avert such injury, and if they are
competent and skilled in judicial craftsmanship, it would
not be difficult for them to find arguments to justify their
action in falling in line with the wishes of the executive,
because reason is a ready-enough advocate for the decision,
one, consciously or unconsciously, desire to reach. One may
recall the brilliant fling of Shri Aurobindo in his epic
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 49 of 90
poem ’Savitri’
"An inconclusive play is Reasoin’s toil;
Each strong idea can use her as its tool;
Accepting every brief she pleads her case.
Open to every thought she cannot know."
This would not only have a demoralising effect on the High
Court judiciary, but it would also shake the confidence of
the people in the administration of justice in cases where
the Government is a party. It is no doubt true that
previous consultation with the Chief Justice of India is a
condition precedent to the exercise of the power of transfer
by the executive add, as I shall presently point out, this
consultation is not a mere idle formality, but has to be
real and substantial, but even so I do not think it affords
sufficient protection to the High Court Judge against
unjustified transfer by the executive. It is settled law
that though consultation with the Chief Justice of India is
obligatory, and as pointed out by this Court in another
connection, the opinion of the Chief Justice of India should
be given the greatest weight, it would not be strictly
binding on the President, that is, the executive, and for
all practical purposes the final decision would rest in the
hands of the executive, so that in the ultimate analysis the
High Court Judge would, in the matter of transfer, remain
directly under the control of the executive’. Moreover,
there is no guarantee that the Chief Justice of India, with
whom consultation is made a constitutional imperative, would
always be able to safeguard the interest of the High Court
Judge. In fact, the mass transfers of 16 High Court Judges,
including the 1st respondent, which took place in May-June
1976 clearly demonstrate the inadequacy of the safeguard of
previous consultation with the Chief Justice of India. It
is obvious, and recent history has proved it beyond doubt,
that it is dangerous to lodge unfettered power in the
executive to inflict injury on a High Court Judge
471
and the check of consultation with one single individual,
howsoever highly he may be placed in the judicial hierarchy,
is illusory and unreal. It is essential for free and
independent judiciary that power exercisable over it should
not be left wholly in the hands of the executive and it
should not be enough merely to consult the Chief Justice of
India to get a charter to exercise the power in such manner
as the executive thinks fit. It would not be safe to
entrust to the executive or to one single individual,
howsoever high and lofty, the power to inflict injury on a
High Court Judge. Power, in order to obviate, the
possibility of its abuse or misuse, should be broad based
and divided and it should be hedged in by proper safeguards.
But here, on the interpretation canvassed on behalf of the
Government, the executive would be free to inflict injury on
a High Court Judge by transferring him without his consent
and there would be no effective check on the exercise of
such power by the executive. Of course, it is a basic prin-
ciple of law that every power conferred by a statute must be
exercised reasonably with a view to effectuating the purpose
for which the power is conferred and the power of transfer
conferred on the executive can be exercised only in public
interest to advance the cause of administration of justice
and consequently, if the transfer of a High Court is made
for a collateral or improper purpose which does not subserve
the interest of administration of justice, it can be struck
down as in-valid at the instance of the Judge who is
transferred, but this remedy would be meaningless and
futile, because it would be almost impossible for the High
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 50 of 90
Court Judge to take legal proceedings for challenging the
transfer aid even if he takes such proceedings, it would be
very difficult for him to establish that the transfer is
prompted by a collateral or improper purpose and is not in
public interest. The net result would be that the High
Court-Judge would be without any effective remedy and he
would have to submit to the transfer made by the executive,
as did all the 16 judges affected by the mass transfers,
barring the 1st respondent, and that would most assuredly
have the tendency to undermine the independence of the High
Court Judiciary.
Now, when the constitution-makers prized the independence of
the judiciary as a cardinal virtue and accepted it as an
article of faith necessary for infusing life and meaning in
the rule of law and with that end in view, made detailed
provisions in the Constitution, with the greatest care,
insulating the High Court Judiciary from executive in-
fluence. or interference in any form. It is inconceivable
that they should have left a loophole and conceded power to
the executive to inflict injury on a High Court Judge by
transferring him without his consent, so as to wipe out the
effect of the other provisions and denude them of meaning
and content. Let us recall the, passionate eloquence of the
constitution-makers in support of the independence of the
judiciary while debating the provisions in the Draft
Constitution relating to the superior Judiciary. Was it not said in the
course of the debate in the Constituent
Assembly in words aglow with conviction and passion : "If
the beacon of the judiciary is to remain bright, courts mast
be above reproach, free from coercion and from political
influence ?" And, did Jawaharlal Nehru not say in his
unimitable way that it was most important that the High
Court Judges should be men of the highest integrity, "people
who can stand against the
472
executive government and whoever come in their Way". Did
not every speaker vie with the other to assert that the
judiciary must be free from executive influence or pressure
and judicial independence was, of the greatest importance ?
Such was the great anxiety and solicitude of the
constitution-makers for the independence of the judiciary
and it is difficult to believe that with all this
overweening concern for judicial independence, the
constitution-markers could have intended to enact a
provision which has the tendency and effect to imperil the
independence of the judiciary, particularly when they took
care to introduce in the Constitution elaborate provisions
concreteness the concept of independence of the judiciary.
It also seems highly anomalous that the transfer of
Subordinate Judges should be wholly within the, control of
the High Court in order to insulate them from improper
executive pressure, while the transfer of High Court Judges,
for whose independence most elaborate provisions have been
made in the Constitution, should be left in the hands of the
executive. It is impossible to imagine that the Subordinate
Judiciary should have been intended to be Protected from
executive interference or pressure but not the, High Court
Judiciary. If the anxiety of the constitution-makers was to
secure the independence. of the Subordinate Judiciary by
putting it out of the power of the executive to transfer a
Subordinate Judge, it can safely be presumed that they were
equally, if not more, solicitous to safeguard the
independence of the High Court Judiciary and they could not
have intended to leave to the executive the power to
transfer a High Court Judge without his consent. It is no
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 51 of 90
doubt true that the words "without his consent" are not to
be found in clause (1) of Article 222, but the word
’transfer’ which is used there is a natural word which can
mean consensual as well as compulsory transfer and if the
High and noble purpose of the Constitution to secure that
independence of the Superior Judiciary by insulating it from all forms at
executive control or interference is. to be
achieved, the word ’transfer’ must be read in the limited
sense of consensual transfer. It must be remembered that
when the Court interprets a constitutional provision, it
breathes life into the inert words used in the founding
document. The problem before the Constitution Court is not
a mere verbal problem. "Literalness", observed Frankfurter,
J., "may strangle meaning" and he went on to add in
Massachusetts S. & Insurance Co. v. U.S.(1) that "there is
no surer way to misread a document than to read it
literally," The Court cannot interpret a provision of the
Constitution by making "a fortress out of the dictionary".
The significance of a constitutional problem is vital, not
formal : it has to be gathered not simply by taking the
words and a dictionary, but by considering the purpose and
intendment of the framers as gathered from the context and
the setting in which the words occur. The difficulty of
gathering the true intent of the law giver from the words
used in the statute was expressed by Holmes, J., in a
striking and epigrammatize fashion when he said : "Ideas are
not often hard but the words are the devil", and this
difficulty is all the greater when the words to be construed
occur in a constitutional provision, for, as pointed out by
Cardozo, J., the process of constitutional interpretation is
in the ultimate analysis one of reading values into its
clauses. I would, in the circumstances,
(1) (1956) 352 U.S. 128.
473
unhesitatingly read the word ’transfer’ in clause (1) of
Article 222 as confined to consensual transfer in order to
give effect to the paramount intention of the constitution-
makers to safeguard the independence of the superior
Judiciary by placing it out of the reach of the power of the
executive. I am fortified in this approach by the high
authority of the decision of this Court in Ranga Mahammad’s
case (supra) which was an analogous case, where a limited
meaning was given to the word ’posting’ in Article, 233 so
as to be confined only to initial posting on appointment or
promotion, with a view to a effectuating the constitutional
policy of securing the independence of the Suborainate
Judiciary.
This view, which I am taking, is also supported by the
scheme and language of the relevant constitutional
provisions. It may be noticed that the basic postulate
underlying these constitutional provisions is that a person
is appointed as a judge of a particular High Court and not a
High Court judge simpliciter. There is no All-India cadre
of High Court judges. When a person is appointed a ’Judge
of a particular High Court, he has to make or subscribe an
oath or affirmation before the Governor of the State and
then only he assumes charge of his office and becomes a
Judge of that High Court. He is then entitled to continue
to occupy the office of Judge of that High Court until he
attains the age of 62 years, subject to three provisos, of
which the first two, which provide for resignation and
removal, are immaterial and the third is that his office
shall be vacated by his "being appointed by the President to
be a Judge of the Supreme Court or his being transferred by
the President to any other High Court within the territory
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 52 of 90
of India". Now under the Government of India Act, 1935 also
there was a similar provision in proviso (c) to sub-section
(2) of section 200, but this provision employed a slightly
different phraseology and provided that the office of a High
Court Judge shall be- vacated "by his being appointed to be
a Judge of the Federal Court or of another High Court."
Neither in proviso (c) nor in any other provision of the
Government of India Act, 1935 was the word ’transfer’ used
and there was also no specific provision in that Act
conferring power to transfer a High Court Judge. The power
to transfer a High Court Judge was expressly conferred for
the first time under the Constitution and it was provided
that the office of a High Court Judge shall be vacated by
his being transferred to another High Court. The question
is whether the use of the word ’transfer’ in the
Constitution makes any difference to the position which
obtained under the Government of India Act, 1935. There is
one difference which is obvious and it is that, whereas
under the Government of India Act, 1935, it was only when
appointment to another High Court was made by the Governor-
General by following the procedure prescribed for making
such appointment, that the Judge vacated his office us judge
of the original High Court, the position under the
Constitution is that appointment of a Judge to another High
Court can be made by transfer and such appointment would not
have to go through the procedure prescribed for a new
appointment. Transfer of a Judge under the Constitution is a mode of app
ointment to the High Court to which the Judge
is transferred. This ’becomes patently clear if it is borne
474
in mind that when a Judge is transferred to another High
Court, he has to make and subscribe, a fresh oath or
affirmation before the Governor of the State to which he is
transferred, before he can enter upon the office of Judge of
that High Court and that oath or affirmation has to be in
Form VIII in the Third Schedule. The Judge who is
transferred is, therefore, by the modality of transfer,
appointed as a Judge of the High Court to which he is
transferred and he becomes a Judge of that High Court only
when he makes or subscribes an oath or affirmation before
the Governor of that State. It is only then that the
transfer of the Judge from one High Court to another is
complete :and he ceases to be a Judge of the High Court from
where he is transferred. It could not have been intended by
the constitution-makers that a Judge of a High Court should
vacate his office and cease to be a Judge of that High Court
as soon as an order of transfer is made and before he makes
or subscribes an oath or affirmation before the Governor of
the State and assumes charge of his office as Judge of the
High Court to which he is transferred. That would bring
about a hiatus in service which could never have been
contemplated by the constitution-makers. The act of
assumption of office of Judge of the High Court to which the
transfer is made must necessarily be simultaneous in point
of time with the act of vacating the office of Judge of the
High Court from where the transfer is made. In fact, the
latter event completes the process of transfer and produces
the former consequence. It may also be noted that though
proviso (c) to clause (1) of Article 217 speaks of the
office of Judge of a High Court being vacated by his being
appointed to be a Judge of the Supreme Court, clause (II)
(b) of the Second Schedule refers to such appointment as
"transfer from a High Court to the Supreme Court". This
clearly shows that the word ’transfer’ is used by the
constitution-makers in the mechanical sense of going from
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 53 of 90
one post to another and not in the sense, in which it is
ordinarily used where there is transfer from one station to
another within the same cadre. Even appointment of a High
Court Judge to the Supreme Court is regarded as transfer to
the Supreme Court. I have, therefore, no doubt that when a
Judge is transferred from one High Court to another, be is
appointed to the High Court to which he is transferred and
it is only when he assumes charge of the office of Judge of
that High Court by making and subscribing an oath or
affirmation before the Governor of the State, that he ceases
to be a Judge of the High Court from where he is
transferred. Now, it is difficult to believe that the con-
stitution-makers could have ever intended that appointment
of a Judge to a High Court or to the Supreme Court could be
made without his consent. How would such appointment become
effective unless the Judge who is appointed makes and
subscribes an oath or affirmation before the Governor, in
case of appointment to the High Court and before the
President, in case of appointment to the Supreme Court. And
that would plainly be a matter within the volition of the
Judge. It is, therefore, obvious that the volition of the
Judge who is transferred is essential for making the
transfer effective and there can be no transfer of a Judge
of a High Court without his consent. This is the position
which emerges clearly from a consideration of the conspectus
of the relevant constitutional provisions.
475
It was, however, contended on behalf of the Government that
this narrow interpretation of the provision in clause (1)
of Article 222 permitting transfer only with consent would
stultify the power of transfer conferred on the President
and rob it of its practical content, because by an large no
High Court Judge would give his consent to transfer to
another High Court. But this apprehension does not appear
to be well founded because the history of almost a quarter
of century after the commencement of the Constitution shows
that during this period no less than 25 High Court Judges
were transferred with their consent in exercise of the power
conferred under this constitutional provision and it did not
remain dormant or sterile. The, annexure appended to the
affidavit in reply filed by R. Vasudevan, :Deputy Secretary
to the Government of India, Ministry of Law, Justice and
Company Affairs gives the list of these 25 High Court
Judges, some of whom were transferred as Chief Justices and
others as puisne Judges. Then a question was posed on
behalf of the Government as to why was it necessary at all
to enact a provision like cl. (1) of Article 222, if
transfer under it could be made only with the consent of the
Judge. But the answer to this question is simple : a judge
appointed to a particular High Court could not be
transferred to another High Court even with his consent,
unless there was a constitutional provision authorising such
transfer and hence this provision had to he enacted in
clause (1) of Article 222. Moreover, consultation with the
Chief Justice of India was intended to ensure, as far as
possible, that the executive should not be able to show
favour to a High Court Judge by transferring him, of course
with his consent which might be readily given, to a bigger
or ’more convenient High ’Court or to a High Court where
prospects of judicial preferment might be brighter for the
Judge.. It would be as much destructive of judicial
independence to allow the executive to hold out blandishment
or show favour to a High Court Judge as to put it within
the power of the executive to inflict injury on him and
consultation with the Chief Justice of India was intended to
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 54 of 90
act as a check upon it. I think it wag Mr. Justice Jackson
who said that "judges are more often bribed by their
ambition and loyalty than by money". The Chief Justice of
India was, therefore, entrusted with the duty to ensure that
no favour was shown by the executive in transferring a Judge
from one High Court to another so as to place him in a more
advantageous position, unless interest of the administration
of justice demanded it. Then, it was urged that if such a
narrow view was taken as regards the meaning and content of
the word ’transfer’ in clause (1) of Art. 222, it would
become impossible to transfer a Judge whose continuance in a
particular High Court to which he is appointed is
undesirable on account of doubtful integrity, improper
conduct or undue involvement with lawyers and members of
the public. Would that not be prejudicial to the interest
of administration of justice and hence detrimental to public
interest ? Does public interest not require that such a
judge should be transferred to another High Court so that
be may be put out of harm’s way? Then why should the power
to transfer such a Judge be denied altogether, for that
would in effect be the position, if transfer were not
possible without the consent of the Judge. Now, it is true
that there might be some cases where the dictates of public
interest might require transfer of a Judge from one
4 76
High Court to another, but such cases, by their very nature,
would be few and far between and I do not think that it
would be right, on account of a few such cases, to concede
power in the executive to transfer a High Court Judge
without his consent which would impinge on the independence
of tEe judiciary. Here there is a competition between two
categories of public interest. One is the public interest
in seeing that a High Court Judge does not continue to
remain at a, place where he is polluting the pure fountain
of justice and the other is the public interest in securing
the independence of the High Court judiciary from executive
control or interference. The latter public interest clearly
outweighs the former and if the court has to choose between
the two, the latter must obviously be preferred to the
former. The transfer of an undesirable Judge may secure
public interest and’ his continued presence in the court
from where he is to be transferred may be an evil, but it is
necessary to put up with that evil in order to secure the
larger good which flows from the independence of the
judiciary. I cannot accept a construction which sacrifices
the independence of the judiciary in order that it should be
possible to transfer a few undesirable judges. The relative
benefit to the public interest by transferring a few
unworthy incumbents of the office of High Court Judgeship is
insignificant compared to the injury to the, public interest
of the people of India in the independent administration of
justice. The public interest in the independence of the
judiciary must, therefore, clearly prevail and a
construction which subserves this higher public interest
must be accepted. The judgment, of the court in
constitutional issues is essentially a value-judgment and it
has to balance competing values and choose between them,
having regard to the comparative importance or value of the
public interest that will thereby be promoted or impaired.
The constitution makers have declared in no uncertain terms
that one of the most’ fundamental public interests shall be
fearless justice by an independent judiciary and that public
interest must determine the choice of’ the court and
persuade the court to accept a construction which promotes
that public interest rather than impairs it.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 55 of 90
It is no doubt true that by this interpretation, the power
of the executive to transfer a High Court Judge would be
considerably circumscribed, but the power being of such
nature and character that its improper exercise can gravely
imperil the independence of the judiciary which is one, of
the fore-most concern of the Constitution, it has to be
limited in order to prevent its possible abuse or misuse.
It is often said by courts that the entrustment of power in
the hands of high functionaries of State is itself a
grantee against its abuse, but we have seen in our own times
that this power of transfer has been abused by the highest
in the land and the so called safeguard of consultation with
the Chief Justice of India has proved to be of no avail.
And, as pointed out by the Judicial Committee of the Privy
Council’ in Don John Francis Douglas Livanage & Ors. v. The
Queen (1) : "What is done once, if it be allomed, may be
done again". It is a terrifying thought, a frightful
possibility, which cannot be allowed to recur if judicial
construction can help avert it. Lord Action said with-
(1) [1959] 1 A.C. 259.
4 77
a profound sense of history : "Power corrupts and absolute
power corrupts absolutely". The history of the development
of supremacy of the rule of law has been a constant struggle
between assertion of ,power on the one hand and efforts to
curb and control it on the other. The interpretation which
has found favour with me places a limitation on the vast
power reposed in the executive and this limitation is
necessary-indeed it is fully jusfitied by all recognised
canons of construction-in order that the superior Judiciary
may be free from executive influence or pressure. Of
course, this view would render it ,almost impossible to
transfer an undesirable Judge from one High Court to
another, but for that, the remedy is not to read the power
conferred on the executive as a power exercisable without
the consent of the Judge but to create an independent
authority which is not controlled by the executive and where
power is exercised by a plurality of hands and to vest the
power of transfer in such independent authority so that it
may objectively and impartially examine each individual case
of proposed transfer on merits and decide whether the
transfer should be made or not and where such provision is
made, the consent of the Judge may be specifically dispensed
with.
That takes me to the next question as to what is the nature
and content of "consultation with the Chief Justice of
India" which is an essential prerequisite before exercising
the power of transfer under cl. (1) of Art. 222. On this
question, I find myself so entirely in agreement with what
has been said by my learned brother Krishna lyer in his
judgment that I do not think I can usefully add anything to
it. I wholly endorse what he has said on this point and
hold that unless there is previous consultation with the
Chief Justice of India of the kind indicated by him in his
judgment, the exercise of the power of transfer would be
invalid.
This brings me to the close of my judgment. It is not
necessary to work out the final order in the case in
accordance with the view taken in the judgment in regard to
the two points raised before us, since as already pointed
out in the beginning of the judgment, the parties settled
the matter between them after the arguments were ended and
we accordingly passed an order on August 26, 1977 disposing
of the appeal in terms of the settlement. Since, however,
there was full debate before us and elaborate arguments
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 56 of 90
were advanced on the two points arising for consideration,
we decided to give a considered judgment dealing with both
the points. This judgment sets out my conclusions on the
two points and gives my reasons for reaching those
conclusions.
KRISHNA IYER, J.-A Judge assailed his transfer by the
President of India from one High Court to another on the
ground of violation of mandatory norme, and sought and got
’nor-transferability’ justice from his peers. The Union of
India, aggrieved by the statement of law and assessment of
fact, has attacked this verdict. Such is the case,
capsulated in a couple of sentences but canvassed by counsel
at erudite length, the subject of justice to Judges being
virgin and the theme of ’lawful illegality’ being amenable
to imaginative submissions.
478
Two disturbingly vital, potentially portentous problems of
Sumter Power, are on the brief agenda of constitutional
adjudication before us in this appeal by certificate.
Despite the diverse points and extreme positions explored at
length by the High Court, the case, in, its crux and
conscience, lends itself to decisive determination by
seeking answers to a few interrogations. If the twin
questions, which we will presently formulate, are to be
satisfactorily settled, the role of judge power and the
immunity of the judiciary must be studied with aware
allegiance to the Scheme and Sweep of the Constitution with
insightful homage to the soul of the Paramount Parchment and
with sociological appreciation that our economic and
political order, of which the legal order is but a juridical
reflection, is sharply pluralist. The apparatuses of
activist Justice, working under such societal strains and
stresses and charged with engineering progressive change
through the law, may have to enjoy more than traditional
functional freedom. For, in a dynamic democracy, with goals
of transformation set up by the Constitution, the Judge,
committee to uphold the founding faiths and fighting creeds
of the nation- so set forth, has to act heedless of
executive hubris, socioeconomic pressures and diehard
obscurantism. This occupational heroism, professionally
essential, demands the inviolable independence woven around
the judiciary by our Constitution. Perfection baffles even
the framers of a Constitution, but while on statutory
construction of an organic document regulating and
coordinating the- relations among instrumentalities, the
highest Court must remember that law, including the suprema
lex, is a principled, pragmatic, holistic recipe for the
behavioral needs and norms of life in the raw-of
individuals, instrumentalities and the play of power and
freedom. We strike, these deeper prefatory notes since the
authorities involved are the President of India,
symbolizing the executive power of the Union (virtually
vested in the Cabinet), the Chief Justice of India who is,
in a way, the head of the Indian Justice System and
repository of certain strategic functions in the operation
of the constitutional complex-of checks and balances, and a
Judge of a High Court, the victim of alleged abuse of
’transfer’ power and bearer of the cross for the higher
judiciary. The turn for similar ’transferal’ treatment may
come tomorrow for others too unless the constitutional
calculus is authoritatively spelt out by this Court under
Article 141. The pathology of power may unpredictably show
up unless correctional vigilance makes its constant curial
presence felt.
We may mention here that as the arguments were drawing to a,
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 57 of 90
close, there was a rapproachement move, the political party
now in office at the Union level reportedly having
repeatedly stated at the ’hustings’-to borrow the words of
Shri Seervai, counsel for the 1st respondent-that
’transfers’ of High Court judges effected by its
predecessor-in-power would be cancelled. Pursuant to this
policy a statement was made, by the learned Attorney
General, concurred in by Shri Seervai, that the 1st
respondent was proposed to be re-transferred by the
President of India and that consequently the relief prayed
for was in substance being conceded. Every dispute that
ripens into a fruitful, consensual, resolution, ends
happily, and’ so, we should have made short shrift of the
litigation on a welcome
4 79
compromise. But we heard counsel on the points covered by
the judgment under appeal and so deal with them in fairness
to the forensic submissions, the Bench of the High Court and
the community at large. Where, under our adversary system,
a critical constitutional question arises, whose decision
may, perhaps, mark the water-shed between flexible judges
and fearless justice, the quality of a litigation is
transformed, the particular parties recede and the
collective community (we, the People of India) figures
invisibly as the beneficiary of the law to be laid down by
the final Court. And so, the compounding of the lis cannot
lull us into treating the subject of ’transfer’ of judges
under Article 222 a non-issue. This Court has no crystal
ball to foretell, nor radar to detect the possible executive
interference with the independence of the judiciary by the
current or later council of ministers. We affirm the utmost
reverence for the human dignitaries in high office but
remind ourselves of Lord Action’ caveat about power and its
tendencies when it is released from the checks and balances
the founding fathers have forged. Nor can hortations be
cognised by the Court because of the common distance between
rhetoric and reality, romantics and pragmatics. An
independent judiciary as pivotal to democracy is a euphoric
proposition and yet, may not, by itself ward off infliction
of subtle indignities and little neglects by the Executive
on judicial personnel who often smart under invidious
distinctions. The supremacy of the judiciary as a senior
branch of the State in the important field of justice is a
social philosophy, acceptance of which may involve many
changes in the way judges at various levels are dealt with
vis-a-vis comparable categories in the executive branch
including Ministers. Of course, we should make it clear
that no claim to be an imperious in imperil can be extended
to the judiciary or, for that matter, to any other
instrumentality under the Constitution. Nor should Judges
be independent of broad accountability to the nation and its
indigent and injustice-ridden millions. Moreover, the
judicial branch has a responsibility, within its allotted
sphere, for the fulfilment of the social, economic and
political pledge registered in the Constitution which "We,
the People of India" expect to be redeemed. Professor
Friedman stated the correct position :
"In the modem democratic society the Judge
must steer his way between the scylla of
subservience to Government and the charydis of
remoteness from constantly changing social
pressures and economic needs.-Law in a
Changing Society (W. Friedmann)."
The wider amplitude and profound implications of judicial
independence may have to be expatiated upon a little later,
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 58 of 90
but suffice it to say, that most Constitutions of the world,
Socialist and Capitalist. have made it axiomatic that Judges
shall be free and fair and fearless in professional
functions. Those who denied it once or doubt it now may
live to do it reverence from experience.
What falls for consideration in the present appeal is a
closer look at the provision for judicial transfers and the
content of "consultation’ as set out in the text and context
of our Constitution. The
480
construction of Article 222 has to be attempted in this
larger setting since it has a grave import for our country’s
progress in many respects. Not to decide, these issues
squarely raised in this appeal merely because of the
appellant and the 1st respondent having exchanged
assurances, if any, is to leave the jural area in twilight
with lamp in hand. Indeed, the issues of semantics and
modalities raised in respect of Article 222 and the fairplay
implied in its mechanics, where orders constitutionally
draped but challenged as expression of executive obliquity,
survive even after the exit of this appeal. We, therefore,
proceed to formulate the points pressed and discuss the pros
and cons.
Before that, the facts brevi manu. The 1st respondent
(petitioner before the High Court) was appointed a Judge of
the High Court of Gujarat as early as 1969. According to
the Judge, for suspiciously inscrutable reasons he was
transferred by the President of India in exercise of his
power under Article 222 in consultation with the Chief
Justice of India as recited in the order itself. The Judge
felt injured and his misgivings were accentuated by the fact
that an unusual number of unwilling Judges from various High
Courts were subjected to cross-country transfers, verdicts
adverse to the Government on ’Emergency I issues being the
apprehended ground for such traumatic hostility. The
petitioner-Judge challenged the vires of the Presidential
Order and a Full Bench of the High Court held the transfer
void. The Union ’of India has appealed. Unfolding the
circumstances and exposing the essentials; the learned
Attorney General, appearing for the appellant, side-stepped
the fringe issues and zeroed in on the core questions.
Before formulating precisely the points on which counsel
joined issue, we may state that Shri Seervai gave up the
plea of promissory estoppel which had been unsuccessfully
urged by him before the High Court. He also stated that the
ground of natural justice having been breached, in the sense
that the proposal for transfer and the grounds thereof
should have been put to the judge concerned, was being aban-
doned by him although he staked his case on a taller
contention that transfer of judges without their consent was
unconstitutional. The surviving submissions alone need be
itemised.
The first emphatic argument of Shri Seervai, which had been
concurrently negatived at the High Court level by all the
judges on the Full Bench, is that a proper construction of
Article 222(1), having realistic regard to the setting and
scheme of the Constitution, leads necessarily to the
conclusion that ’consultation’ with the Chief Justice of
India has, as its inescapable component, the securing of the
transferee judge’s consent to the transfer. The second
submission, which led to an equally serious debate at the
bar, turned on the textual connotation and contextual
content of ’transfer’ the meaning, measure and materiality
of the expression , consolation’, the pertinence and
impertinence of considerations governing the exercise of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 59 of 90
’transfer power’ over judges under Article 222. What are
the modalities, parameters, normae and mechanics of Article
222 so that the purpose of the provision may be fairly, not
oppressively, executed by the President, after consulting
the Chief Justice?
481
Before we enter on a discussion of these crucial questions,
we may record the fact that the learned Attorney General
agreed that I consultation’,. as contemplated in Article
222, was a high constitutional requirement demanding
substantial compliance and not dismissible as an empty
formality. It was also conceded by the Attorney General
that transfer. of judges should be an exception and resorted
to only in public interest. Nor was there any dispute about
the competence of the Court under Article 226 to exercise
its power of judicial review of the Presidential action if
there was present any reason within the range of non-
consultation, illusory consultation, ulterior purpose or
non-application of the mind and the like which may be
condensed into (a) breach of the requirements of Article
222; or (b) malafide use, of the power thereunder.
We are mindful that, in the present case, the power of
judicial review over administrative action has to be
exercised with circumspection and on substantial material-
since the authorities are the President (i.e., the Central
Cabinet) and the Chief Justice and the adversely affected
dramatis personae are judges of the highest courts in the
States. Even so, the play must be’, according to the script
and if there is serious deviance, this Court, with
responsibility to pronounce upon the law of the land, shall
not shrink from it a wee bit, If the examination of the
validity of the administrative action exposes breach of a
fundamental provision, albeit by the highest, or mala fide
exercise, however nobly motivated, in either case, the act
becomes non est. Public power is a lofty trust to be
lawfully operated and, if private impulses or public
aberrations play upon the exercise, the court shall quash
the lawless fiat. ’A government of laws and not of men’
being our basic constitutional theory, absolutism, even
benignant, is anathema and administrative action has to be
legitimated by legality. ’Be you ever so high, the law (of
the Constitution) is above you’. When this Court,
discharging its responsibility under Article 141, places an
authoritative construction on a spinal provision with impact
on the basics of our constitutional dynamics, it may shake
or shape the executive/judicative equation, catalyze the
constitutional checks and balances and canalyze the free
flow of justice. And, if this Court quails or fails, the
nation, in the short run or long run, travails. We must
state, in considering the conditions of service of
traditions the best nor colonial legacies lustrous, as
American and Swiss experiences for instance show. Again,
what worked well for half a century may work ill later. The
point is that some grounds which appeal to the President as
of high pertinence and priority may be allergic to some
judges or statesmen; but in a pluralist society, afflicted
with medieval cleavages and modern cravings, striving to
develop rapidly into a vibrant democracy, the scale of
values and the meaning of meanings may vary; and
governmental radicalism, if any, needed for socioeconomic
justice to the millions or subduing divisiveness in the
nation may not be voided by judicial review of State policy
on the score of unpalatable unconventionality. Some of the
thought processes bearing on relevance and irrelevance of
considerations relating to transfer of judges, as set out in
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 60 of 90
the rejoinder affidavit and as articulated by Shri Seervai
in his puissant submissions
7-930SCI/77
482
of impassioned conviction) induce this observation. We
do not elaborate save to say this. On policy and strategy
the President is the judge. On power and limitations, the
judge presides.
Even so, the creed of judicial independence is our
constitutional ’religion’ and, if the Executive use Article
222 to imperil this basic tenet, the Court must ’do or die’.
For, when curial justice or judicial freedom is jeopardised
by unconstitutional action, what survives? So a balance
must be struck. Subject to the major premise or non-
negotiable promise of non-interference with judicial
personnel by methods traumatic or temptational, the rule is
clear. The Court could not, even if it would, project its
pet aversions to reject progressive policies of
Administration even relating to the judiciary; an the Court
would not, even if it could, hesitate to hang any overt or
covert juggling with_ the justice system by any hubristic
Executive. And when criteria for transfers of judges are
put forward by the President which may upset past practices
we must, as democrats, remember Learned Hand who once said
that the spirit of liberty is ’the spirit which is not too
sure that it is right’. Thai great judge was ’fond of
recalling Cromwell’s statement : ’I beseech ye in the bowels
of Christ, think that ye may be mistaken’. He told a Senate
Committee, ’I should like to have that written over the
portals of every church, every school and every court-house,
and may I say of every legislative body in the United
States. I should like to have every court begin ’I beseech
ye in the bowels of Christ, think that we may be mistaken’.
(Yale Law Journal, Vol. 71; 1961 November part).
Now to the legal challenges canvassed, freed as we are from
the need to make factual findings, thanks to the concessual
decretal position. The first problem formulated by us above
revolves round our constitutional philosophy and the
construction of the language of Article 222. ’Philosophy is
a battle against betwitchment of our intelligence by mean’s
of language’ said L. Wittgenstein, in his "Philosophical
Investigations’. Mindful of the high sensitivity area of
judicial independence versus executive interference, it may
be said, as was done by counsel on both sides in this case,
that the inviolability of judicial freedom is an obvious
value, at once sacred and strategic, but the words of Oliver
Wendell Holmes cannot be lost on us : "It is sometimes more
important to emphasize the obvious than to elucidate the
obscure."
We straight go into statutory construction which is- of
great moment. Article 222 is not the only provision-where
’consultation is obligated with reference to the judiciary
by the Constitution. For example, the appointment of judges
of the Supreme Court involves the constitutional necessity
of ’consultation’ as stipulated in Article 124; so also the
appointment of judges of High Courts (Article 217). Coming
further down to the subordinate judiciary-indeed, the common
man is more concerned as consumer of equal justice at the
hands of the local courts of the country-Article 233
mandates ’Consultation by the Governor of the State with the
High Court concerned. We do not seek to be exhaustive but
exemplify that the,
483
independence-imperative vis-a-vis the courts is effectuated
by the consultative component in any decision seriously
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 61 of 90
affecting the, appointment, conditions of service and
kindred matters bearing on the judiciary at various levels.
The pervasive importance of our ruling on the question
before us is thus clear. Statutory interpretation of one,
clause may, in a sense, affect the fascist of ’judicial’
clauses in the various parts of the Constitution. We are
free to concede, however, that the extent, nature and
process of consultation may vary to a degree, depending on
the responsible levels, high functionaries, other protective
provisions and like factors. Whether it extends to consent
of the judge concerned is another matter we have to decide,
as Sri Seervai has been at great pains to ’proselytise’ us
to his viewpoint, if we may appreciatively put it that way.
Proceeding to decide a constitutional clause in an organic
code, our juristic technique has to be perceptive spacious,
creative, not narrowly grammatical, lexicographically
pedantic or traditionally blinkered, informed by Lord
Denning’s picturesque words
"Law does not stand still. It moves
continually. Once this is recognised, then
the task of the Judge is put on a higher
plane. He must consciously seek to mould the
law so as to serve the needs of the time. He
must not be a mere mechanic, a mere working
mason, laying brick on brick, without thought
to the overall design. He must be an
architect--thinking of the structure as a
whole-buildihg for society a system of law
which is strong, durable and just. It is on
his work that civilised society itself de-
pends."
(Denning, M. R. Foreward to the Supreme Court
of India (A socio-legal critique of its
juristic techniques)-by Rajeev Dhavan.
Shri Seervai drew our attention to the constellation of
provisions which served as ’hands off judges’ clauses. This
armour has counterparts in the Government of India Act,
1935. For instance, to borrow from the 1st respondent’s
neat statement of the case,
"(a) Judges of the High Court hold their tenure not at the
pleasure of the President but till they attain the age of 62
years: Article 217 (1): [Sec. 220(2), G.I. Act, 35].
(b) Their salaries and allowances are charged on the Con-
solidated Fund of the State : Article 203(3) (d) [Sec. 78(3)
(d) G.I. Act, 351 so that under Article 203(1) they are not
subject to a vote of the Legislative Assembly: [See. 79 (1),
G.I.Act, 35]
(c) The pensions of High Court judges are charged on the
Consolidated Fund of India : Art. 112 (3) (d) (iii) [Sec. 33
(3) (d), G.I. Act, 351 so that under Article 113 (3) such
pensions are not subject to the vote of Parliament. [sec. 34
(1), G.I. Act, 35]. Further. under Article 221 (2),
"neither the allowance of a judge nor his rights in respect
of leave of absence or pension are to be varied to
484
his disadvantage after his appointment" [See 221, proviso,
G.I. Act, 35] Since the salaries payable to the judges are
prescribed by Schedule 11 of the Constitution, they could
not be varied without an amendment of the Constitution.
(d) Article 211 prohibits any discussion in the Legislature
of a State with respect to the conduct of any judge of the
Supreme Court or of a High Court in the discharge of his
duties (Emphasis supplied) : [Sec. 40 (1), G.I. Act, 35]
(e) Article 215 confer upon the High Court a power to
punish for contempt of itself.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 62 of 90
(f) The provisions of Article 211 show that the judges are
protected from criticism of their judicial acts from the
Legislature, which is a political assembly, and the
provisions of Article 215 show that the High Court has power
to protect itself against interference in the course of
administration of justice from whatever quarter it may come.
(g) Under the general law of Civil liability (Tort) words
spoken or written in the discharge of his judicial duties by
a judge of the High Court are absolutely privileged and no
action for defamation can lie in respect of such words.
This absolute immunity is conferred on the judges on the
ground of public policy, namely, that they can thereby
discharge their duty fearlessly.
(h) The form of oath prescribed in the 3rd Schedule for a
Chief Justice or a Judge of the High Court emphasises the
absolute necessity for judicial independence if the oath is
to be adhered to, because it requires the judge to swear
that he will perform the duties of his office "without fear
or favour, affection or illwill." ( Emphasis supplied).
These words have been added to the form of the judge’s oath
prescribed by the, G.I. Act 35, Schedule IV, 2.
(i) The independence of the High Court is emphasised by
Article 229 which provides that appointments of officers and
servants shall be made by the Chief Justice or such other
judge or officer as he may appoint.
(j) Article 50, which is a directive of State Policy,
directs the State to take steps to separate the judiciary
from the executive in the public services of the State,
thus emphasising the need of securing the judiciary from
interference by the executive.
These provisions do not stand alone. Chapter V of Part VII
of the Constiiution deals with High Courts in the States.
Chapter VI deals with subordinate Courts and Articles 233
and 235, as judicially interpreted provide that in respect
of promotion, transfer and disciplinary action, the
subordinate judiciary are under the full control of the High
Court and not of the executive government in order to secure
judicial independence. Originally, the Constitution used
the word "posting" in Article 235. in order to preserve
judicial independence the word "posting" was interpreted to
mean an original appointment and not to include a transfer:
Ranga Mahommad’s case (1967) 1 S. C. R. 454. This
interpretation was accepted by Parlia-
48 5
ment when it inserted Article 233A which was inserted by the
Constitution 20th Amendment Act, 1960, validating certain
appointments and recognizing the distinction between
"posting" and "transfer" in sub-clause (a) (ii) of Article
233A."
These muniments highlight the concern of the founding
fathers for judicial insulation, a sort of Monroe doctrine.
Against this background we must read Article 222. The
doctrinal basis is clear. Are the words also clear ? If
yes, no difficulty presents itself, if no, actual
legislative history and accepted constitutional theory, it
is con-tended, may form part of extrinsic aid, as a tool to
remove ambiguity. This plunges us into the problematics of
constitutional interpretation.
The detailed debate at the bar on canons of statutory
construction persuades us to essay a consideration of their
essentials to the extent necessary here. It is neither an
illogical nor a starting proposition that one of the
components of understanding and interpretation in law as in
art is the content within and without the Act or work in
which the particular words in question appear. British
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 63 of 90
judicial thinking is reflected in many rulings one of which
may be referred to here. Viscount Simonds in Attorney-
General v. Prince-Ernest. Augustus of Hanover (1957 AC 436)
stated at p. 461 :
"For words, and particularly general words,
cannot be read in isolation : their colour and
content are derived from their context. So it
is that I conceive it to be my right and duty
to examine every word of a statute in its
context, and I use ’context’ in its widest
sense, which I have already indicated as
including not only other enacting provisions
of the same statute, but its preamble, the
existing state of the law other statutes in
pari material and the mischief which I can, by
those and other legitimate means, discern the
statute was intended to ’remedy.
Since a large and ever-increasing amount of
the time of the courts has, during the last
three hundred years, been spent in the
interpretation and exposition of statutes, it
is natural enough that in a matter so complex
the guiding principles should be stated in
different language and with such varying
emphasis on different aspects of the problem
that support of high authority may be found
for general and apparently irreconcilable
propositions. I shall endeavor not to add to
their number, though I must admit to a
consciousness of inadequacy if I am invited to
interpret any part of any statute without a
knowledge of its context in the fullest sense
of that word." (Emphasis supplied)
Lord Normand expressed the idea thus, at p.
465 :
"In order to discover the intention of
Parliament it is proper that the court should
read the whole Act, inform itself of the legal
context of the Act, including Acts so related
to it that they may throw light upon its
meaning, and of the factual context, such as
the mischief to be remedied,
4 86
and those circumstances which Parliament had
in view, including in this case the death of
the last of Quen Anne’s Children and the state
of the family of the Princess Sophia. It is
the merest commonplace to say that words
abstracted from context may be meaningless or
misleading."
Primarily, the key to the opening of every law is the reason
and spirit of the law-it is the animus impotent is the
intention of the lawmaker, expressed in the law itself,
taken as a whole. We must also notice that not much is
gained by the caution that where a word is ambiguous
extraneous aids can be used, because an ex facie unambiguous
word may acquire one of many alternative shades of meaning
given a statutory setting. John Dewey is right (as quoted
by Reed Dickerson):
"Dewey, although conceding that ’no term has
logical force save in distinction from and
relation to other terms’, adds :
"This statement is not contradicted by the
fact that all familiar words carry some
meaning even when uttered in isolation........
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 64 of 90
(T)heir meaning is potential rather than
actual until they are linked to other words.
If the words sun, parabola, Julius Caesar,
etc., are uttered, a line of direction is
given to observation or discourse. But, the
objective of the direction is indeterminate
until it is distinguished from alternative
possible terminations, and is thus identified
by means of relation to another term."
(J.Dewey, Logic : The Theory of Inquiry 349
(1938) Emphasis in original).
(p. 50, Dickerson)
As Allen points out, words are meaningless in isolation
although it may be offset by a footnote thought that even
when read out of specific context, particular words and
phrases retain much of the flavour of their usual
associations. In view of these divergences ’it is a
delicate business to base speculations about the purpose or
construction of a statute upon the vicissitudes of its
passage. (Holmes J in Pine Hill Coal Co. v. United States :
259 U.S. 191, 196). Even so, we agree with the emphasis
laid by Shri Seervai on the ruling in River Wear
Commissioners v. Adamson (2 App. Cas. 743, HL 1877)
"...... (W) e are to .... (give) the words
their ordinary signification, unless when so
applied they produce an inconsistency, or an
absurdity or inconvenience so great as to
convince the. Court that the intention could
not have been to use them in their ordinary
signification, which though loss proper, is
one which the Court , thinks the words will
bear.".
This Court has veered to the view that whatever is logically
relevant is legally look-at-able, See : State of Mysore v.
R. V. Bidap
487
(1974) 3 SCC 337 and Dattaraya Govind Mahajan v. State of
Maharashtra (1977)2 SCC 548. Truth is not a cloistered
virtue but carefully to be located. The universe of meaning
is not a soundproof system nor a noisy babel. We have
guidelines, not rituals. The rule is not, always
literality, for that sounds like bigotry. Nor is it
whatever the interpreter chases, like historicity,
sociology, contextuality and a host of fancy-dress fashions,
for that will create unwarranted variances and supersede the
law-maker by a side-wind. Words used designedly by trained
draftsmen and authenticated by purposeful legislators, must
possess a mandate, a meaning and a mission. That is its
sense.
Therefore, we are inclined to the view that legislative
history plus, within circumspect limits, may be consulted by
courts to resolve ambiguities, warning themselves that the
easy abuses of legislative history and like matrix material
may lead to the vice of occult uncertainty and wresting of
legislative power from where it belongs. (See Reed Dickerson
Ch. 10 on ’The Uses and Abuses of Legislative History). The
history of events transpiring during the process of enacting
an act has generally been the first extrinsic aid to which
courts have turned in attempting to construe an ambiguous
act, (Sutherland $ 48.04). It may be reasonable to accept
the statement of Mr. Justice Jackson in Schwegmann Bros v.
Calvert Distillers Corp. (341 U.S.384, 395-397) :
"By and large, I think our function was well
stated by Mr. Justice Holmes : ’We do not
inquire what the legislature meant; we ask
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 65 of 90
only what the statute means." . . . And I can
think of no better example of legislative
history that is unedifying and unilluminating
than that of the Act before us."
(Dickerson, p. 163)
Similar is Frankfurters’ three-fold imperative to students :
"(1) Read the statute; (2) Read the statute, (3) Read the
statute" Attributed to H Friendly Benchmarks 202 (1967-
Dickerson, p. 217).
We have said enough to indicated that an attempt to be
exhaustive about the canons of interpretation and
application of statutes is a journey through a jungle.
Nevertheless, while understanding and interpreting a
statute, a fortitude a constitutional code,, the roots of
the past, the foliage of the present and the seeds of the
future. must be within the ken of the activist judge.
Curtis has contended that, consistently with the ascertained
meaning of the statute, a court should be able, to shake off
the dust of the past and plant its feet firmly in the
present
".....The legislature which passed the statute
has adjourned and its members gone home to
their constituents or to a long rest from all
law-making. So why bother about what they
intended or what they would have done ?
Better the prophetic than archaeological,
better deal with the future than with the
past, better pay a decent respect for a future
legislature than stand in awe of one that has
folded up its
4 88
papers and joined friends at the country clubs
or in the cemetry.
[C. Curtis, A Better Theory of Legal
Interpretation, 3 Vand L. Rev. 407, 415
(1950), rephrased in It’s Your Law 54, 55
[1954)] (Dickerson, p. 245)
While we agree that judicial interpretation should not be
imprisoned in verbalism and words lose their thrust when
read in vacuo, we must search for a reliable scientific
method of discovery rather than the speculative quest for
the spirit of the statute, and the crossthoughts from
legislators’ lips or Law Commissioner’s pens. They edify
but are not edictal.
In Hutton v. Phillips, the Supreme Court of Delaware threw
useful light on the use of contextual and environmental
background to correct construction of statutes :
". . . (Interpretation) involves far more than
picking out dictionary definition of words or
expressions used. Consideration of
the context and the setting is indispensable
properly to ascertain a meaning. In saying
that a verbal expression is plain or
unambiguous, we mean little more than that we
are convinced that virtually anyone competent
to understand it, and desiring fairly and
impartially to ascertain its signification,
would attribute to the expression in its
context a meaning such as the one we derive,
rather than any other; and would consider any
different meaning, by comparison, strained, or
far-fetched, or unusual, or unlikely.
expression in its context, is a finding that
such meaning is rational and ’makes sense’ in
that context."
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 66 of 90
[45 Del. 156-70 A. 2d 15 (1949)]
"An explanatory tale should not wag a statutory dog"
(Attributed to Jones, C.J. in A.P. Green Export Co., v.
United States, 284 F. 2d 383, 386) (Dickerson, p. 137).
True. But ’the meaning of some words in a statute may be
enlarged or restricted in order to harmonize them with the
legislative intent of the entire statute .... It is the
spirit.... of the statute which should govern over the
literal meaning.’ (Hanley, J., in Town of Menominee v.
Skubits. 53 Wis. 2d 430, 437) (Dickerson p. 198). Labels
like strict or liberal construction or totems like
’context’, ’spirit’, ’cognitive’ and ’creative’ do not solve
the problem. The only way we may scientifically approach
the interpretative problem raised in this case is to show
deep reverence to the lovely sum-up by Benjamin Cardozo :
"We may figure the task of the judge, if we
please, as the task of a translator, the
reading of signs and symbols given from
without. None the less we will not be set men
to such a task, unless they have absorbed the
spirit, and
489
have filled themselves with a love, of the
language they must read."
(The Nature of the Judicial Process : Yale
University Press)
To set the record straight we must reiterate
what Craies has stated ,with classical purity
"If the words of the statute are themselves
precise and unambiguous, then no more can be
necessary than to expound those words in their
ordinary and natural sense. The words
themselves alone do in such a case best
declare the intention of the lawgiver.
Where the language of an Act is clear and
explicit, we must give effect to it, whatever
may be the consequences, for in that case the
words of the statute speak the intention of
the legislature".
(Statute Law 6th Edition, p. 66)
Our basic task now is simplified because the issues and
themes that have fallen for discussion demand an
application to the concrete situation of ’the general
principles bearing on statutory construction we, have put
down in variegated coleus. But, before that, in the spirit
of what we have, said, we may refer to, a fundamental con-
sideration which must be, regarded almost as inspirational
in the art of interpretation of a Constitution when the
clauses to be construed are so cardinal as to affect the
basic structure of the national charter, Viz., the
independence of the judiciary. To dissect a constitutional
provision meticulously as if it were a cadaver is to miss
the life of the charter we are expounding. To change the
metaphor, then the arrow hits a mark ’the archer never
meant’.
Shri Seervai set tremendous store by the contention that
Article 217(1), proviso, (c), Article 222 and a family of
’judicial’ articles dealing with the superior court judges,
including the items in schedule III relating to Form of Oath
prescribed for judges, highlight the sacrosanct character of
the infrastructure constructed by the Constitution as the
delivery system of justice. The Chapter on ’subordinate
judiciary’ was also touched upon.
Shri Gupte, the learned Attorney General, assured the Court
that he and his client were second to none in upholding the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 67 of 90
independence of the judiciary but contended that the
doctrine could not be pressed in its extreme form to
undermine a clear power vested in the President. To do so
would be to defeat the intent and purpose of the Article by
the covert process of construction. Indeed, he went on to
state that there was no contradiction between the power to
transfer, under Article 222, and the insulation of the
judiciary from the tantrums and allurements of the
Executive. This controversy takes us to
4 90
the pivotal role of judicial independence in our
constitutional scheme and its impact on the terms of Article
222(1).
We have not the slightest doubt that, having regard to the
enormous undertakings a Welfare State, such as is
envisioned in our Constitution, has to launch upon,
government and government controlled institutions becomes
litigants in a variety of ways in the courts of the country.
And, if a litigant has, in another capacity, power of
transfer over the Court, the situation is apt to become
murky unless the constitutional lines for the play of
that power are clearly drawn and the highest Court in the
land holds the Executive within the leading strings of
constitutional limitations. Power, Executive power in
enormous measure, vests in the President, and in the Cabinet
system and in the parliamentary model of the Westminster
type, the legislature often accepts the lead of the Council
of Ministers. Naturally, the two branches of the State so
intertwined may present a concentration of power the use of
which has to be carefully monitored so that justice to the
citizen as against the State, justice to the State as
against the Union and justice to the community where men in
high office are arraigned, may not fail in court. The
confidence- of the people in the fearless, flawless
administration of justice is of a supreme importance for the
survival of democracy and the progress of the nation.
We now, move on to the doctrinal debate. and a valid
resolution of the rival views. The spiritual value of a
free judiciary for a civilised human order is symbolised in
the imperative Fiat Justicia and inscribed in ancient Indian
Neeti Shastras. To us of a constitutional culture rooted in
the supremacy of justice-social, economic and political-and
subjected to colonial injustice before we became free,
independence of the judiciary is no speculative nicety nor
sweet novelty but a dear creed to defend,liberty. But this
noble precept must be perceived as part of and not paramount
to the ensemble of values which makes a people free. It is
not as if judicial independence is an absolute end
overriding the people’s well-being. ’Nothing is more
certain in a modem society’, declared the U.S. Supreme Court
at mid-century, ’than the principle that there are no
absolutes’. The world of law, like that of physics, was
perceived only as the relativity of one value compared with
another." (Schwartz, p. 269-70). This relativity is
inevitable in a changing society like ours. Even in America
’theold justice in the economic field (affirmed John,Dewey)
consisted’ chiefly in securing to each individual his rights
of property or con-, tracts. The new justice must consider
how it can secure for each individual a standard of living,
and such a share in the values of civilisation as shall make
possible a full moral life." (Schwartz, p. 271). The
nostalgic image of celestial justices wearing ’independent"
ermine. unsullied by the dusty soil ’where the tiller is
tilling the hard ground and where the pathmaker is breaking
stones’ will be, rebuffed by Justice, social and economic,
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 68 of 90
with the reproof in the Gitanjali : ’Put off thy holy mantle
come out of thy meditations. Meet him and stand by him in
toil and in sweat of thy brow’. The point is that
Deliverance of the People is the basic vision; Justice
fills:
491
that vision with life when, in term-, of the Institutes of
Justinian, it ’is the constant and perpetual wish to render
to every man his due’; and independence of the justices is a
necessary means to that endless end and, contrary thereto,
if Judges declare for themselves socially untenable
’independence’ of the interests of ’the People of India’ the
picture Pets distorted. This perspective illumines the
nation’s charter which invests judges with power. To
idealise independence of the judges beyond the profile of
the Constitution is to self-colonise our country’s life-
style. And, Bejamin Cardozo has, with beautiful bluntness,
expressed how the sub-conscious forces and social
philosophies of judges hold their minds captive :
"Judges cannot escape, that current any more
than other mortals. All their lives, forces
which they do not recognize and cannot name,
have been tugging at them-inherited instincts,
traditional beliefs, acquired convictions; and
the resultant is an outlook on life, a
conception of social needs a sense, in James’
phrase, of ’the total push and pressure of the
cosmos’ which, when reasons are nicely
balanced, must determine where the choice
shall fall."
(Nature of the Judicial Process, p. 12)
This divagatory discussion is, in a sense, fundamental to
the resolution of the conflict between the broader
presentation of the problem by the learned Attorney General
and the relentless philosophical insistence of Sree Seervai.
Why ? Executive interference is one menace. Judicial
prepossessions and prejudices wearing liberal masks, may be
another. Mob and media hysteria can be a third The Roman
Emperor did not dictate the injustice of crucifixion which
Pontius Pilate decreed. Nor was the Dred Scott decision,
which dehumanised the black millions, the product of unfree
justices. And yet, history has pronounced with blood these
independent judges guilty.
The truth is that at a time of Hamlet’s choice of "To be or
not to be" for hundreds of millions of Indian humans,
independent justice has a paramount ’public interest’
connotation. Within this larger framework of common-weal,
and conducive to that object, we must conceive the ideology
of the independence of the judiciary. Once this major
premise granted, ’hands off judges’ is too sacred to be
sacrified. For corrosion of ’the court’s authority
conscientiously to adjudicate, undaunted by executive
displeasure or other forms of pressure, is the subversion of
the surest institutional guarantee of life, liberty and the
pursuit of happiness.
We agree broadly with the- learned Attorney General that
where the first principle of ’ justice to the community is
contradicted by the continuance of the judge in a particular
State, the, ’independence’ principle will have to be
harmonized with the cause of compelling public interest.
Indeed, the independence of the judiciary is itself a
necessitous desideratum of public interest and so
interference with it is impermissible except where other
considerations of public interest are so strong, and so
exercised as ’not to militate seriously against the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 69 of 90
492
free flow of public justice. Such a balanced blend is the
happy solution of a delicate, complex, subtle, yet
challenging issue which bears on human rights and human
justice. We agree with Sri Seervai that the plea that some
judges are corrupt and therefore the Executive must have the
power to put any judge out of a State is a remedy that
aggravates the malady. It is a balancing of evils. And, it
judicial vice at that level is negligible and gently
manageable, why temporise on a priceless value? A few
scapegraces among justices cannot be an alibi for making the
whole judicature scapegoat.
The nature of the judicial process is such that under
coercive winds the flame of justice flickers, faints and
fades. The still small, voice is smoothened by subjective
tribulations and anxieties and, if coerced, trembles to
objectify law and justice. The true judge is one whose soul
is beyond purchase by threat or temptation, popularity or
prospects. To float with the tide is easy; to counter the
counterfeit current is uneasy. And yet the judge must be
ready for it, if needed. By habit and training, by the open
process of ’adversary’ hearing and ordinary obligation for
written reasoning, by the moral fiber of his peers and
elevating tradition of his profession, the judge develops a
stream of tendency to function ’without fear or favour,
affection or illwill’, taking care, of course, to, outgrow
his prejudices and weaknesses, to read the eternal verities
and enduring values and to project and promote the economic,
political and social philosophy of the Constitution to
uphold which his oath enjoins him. But it is sense to treat
the person who wears the robes as human, with failings and
falterings and affected by the ’total push and pressure of
the cosmos’. And so, environmental protection of the
judicial echelons from Executive influence, by transfer or
other deterrent, is in public interest. But to promote the
community’s concern for impeccable litigating justice,
policy-oriented transfer of judges after compliance with
constitutionally spelt-out protocols may not be ruled out.
It was right of Sri Seervai to have spread the canvas wide
since the appreciation of this pivotal issue of the judge’s
matier and methods demands acceptance of the broader
bearings and constitutional culture. We here construe riot
merely Article 222 but lay down the larger law of the
Constitution. We must first understand that judges have,
been assigned, by the supreme lex, an independent sentinel’s
duty. To defeat this role subtly or crudely is to rob the
Constitution of a vital bent servant but a constitutional
functionary. He stands in a different category. He
cannot be equated with other ’services’ although for
convenience certain rules applicable to the latter may,
within limits. apply to the former. Imagine a judge’s leave
and pension being made precariously dependent on the
Executive’s pleasure. To make the government-not the State-
the employer of a superior court judge is to unwrite the
Constitution. To conclude: on this branch, we cannot tear
off the text of Article 222 and put it under a microscope
but must master the scheme and setting and describing the
meaning beyond the political sunrises and sunsets of passing
seasons. Indeed, the spiritual quiet and spiritual quest of
the judges toils lies here. We may listen to Chief Justice
Hidayatullah’s chastening words
493
"One must, of course, take note of the
synthesised authoritative content or the moral
meaning of the underlying principle of the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 70 of 90
prescriptions of law, but not ignore the
historic evolution of the law itself or how it
was connected in its changing moods with the
social requirements of a particular age. " *
Sri Seervai called attention to other articles, the form of
oath prescribed for judges, the need for oath while assuming
office on transfer etc., to support his main plea. We do
not think that this submission advances his case further.
Even so, we will briefly examine the merits of the
submission. ’Transfer’, according to Sri Seervai, is used
in this Chapter, as taking colour from ’appointment’.
Appointment to a post or office can be only by consent and
so, if transfer partakes of the element of appointment,
consent of the transferee is necessary.
In ’service’ vocabulary, familiar to the Constitution
framers, the concepts of appointment and transfer are clear.
But Shri Seervai took as through many articles to suggest
that either ’transfer’ was used in the company of
’appointment’ or in such other milieu as to limit the former
to cases of consent transfer. He also invoked the rule of
nosciteru socii to impart a consentaneous flavour to
’transfer. Captivating, not convincing, is our short
comment.
The basic assumption, with which, in the abstract, no one
can quarrel, is that appointments can be made not by
conscription but by willingness of the appointee, and
founded or this concept attempt was made to bring in the
component of ’appointment’ in every ’transfer’.
Article 216 was-pressed into service to make out that a High
Court consisted of a Chief Justice and only such other
judges as were appointed. Therefore, if a transferee judge
was to become part of the High Court he bad to be appointed.
Article 217 was read to suggest with special reference to
proviso (e) to Article 217(1) that even as the office of the
judge of a High Court shall be vacated by his being
appointed to be a judge of the Supreme Court-this could be
done only with the consent of the judge concerned since
nobody could be forced into judgeship of the Supreme Court-
so also, vacancy could be caused by transfer to any other
High Court only if it were with consent. A case of
transfusion of sense, as it were. It was further stressed
that Article 219 stipulated the necessity for oath of office
being taken before a judge entered upon his office. Such an
oath was taken with special reference to the High Court
where he was becoming a judge. Therefore, on transfer to
another State High Court a fresh oath was necessary and the
form of oath spoke of appointment, not transfer. From this
it was sought to be inferred that a judge, on transfer, bad
to be appointed to another High Court. A few more of such
somewhat finical instances were picked out, and scanned at
the micro-level to broad-base the theory that ’transfer’ in
the scheme of Chapter VI Part V covered only such shifts as
were concurred in by the transferee. Having given close
thought to the thesis, presented with an eye on
4 94
detail and woven into a fine web, we are not inclined to
agree that the plain meaning of transfer under Article 222
can be whittled down in the manner suggested. To be subtle
may not always be to be sound. The learned Attorney-General
explained that Article 216 merely set out the constitution
of the court as including the Chief Justice and such other
judges as the President chose to appoint. The
contradistinction between ’appoint’ and ’transfer’ did not
arise in the, situation. Likewise, proviso (e) to Article
217 (1) covered two separate categories and two separate
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 71 of 90
situations giving rise to vacancy in the Office of Judge of
a High Court. The first was when a High Court judge was ap-
pointed to the Supreme Court; the second was when he was
transferred to any other High Court. To telescope, the two
to deduce the common element of consent was to mix up two
distinct categories without any warrant. On the other hand,
the use in the Constitution of the two words ’appoint’ and
’transfer’ separately brings into bold relief the
distinction between the compulsory process of transfer and’
the voluntary acceptance needed for an appointment. The
learned Attorney-General was inclined to urge that
technically a fresh oath was not even necessary when a judge
was transferred from one High Court to another. Perhaps the
form of oath specifies the High Court and, therefore, a
transfer may necessitate a second oath with reference to the
transferee High Court. Even so, that does not tell upon the
construction of the expression ’transfer.
A few other factors contradicting the notion that fresh
appointment was implied in every transfer were highlighted
by the learned Attorney-General. Minor verbal vagaries,
[see Schedule 11 Part IV (11)] even if discovered were
inconsequential where the thrust of the particular provision
was strengthened by other considerations,
If the transfer of a judge is tantamount to his de novo
appointment, a second time, there should be consultation
with the Chief Justice and the government of the State to
which he is transferred. Article 222 does not visualise
such second consultation and neither side has a case that
such protocol was adhered to ever before. Nor is a fresh
warrant of appointment issued. Secondly, the Government of
India Act, 1935 and the draft Constitution did not provide
for transfer of judges but only their appointment in any
other High Court. Then why did the makers of the
Constitution deliberately depart specially to include the
provision for transfer unless it be that it was meant. to
vest this additional power in sharp contrast to the earlier
limited power to appoint in another High Court’? Thirdly,
whenever consent of the judge is contemplated, it is
specifically stated e.g. Art. 224A, and its omission in
Article 222 is a pointer to the nonconsensual sense. And
when a constitutional provision, introduced by design and
unambiguous in ’service’ terminology, falls for
construction, instruction about the setting is useful but
interpretation by the judges to undo what was done by the
authors is not right. We agree.
At this stage we may read and decode the concerned Article
and deal with the matter in greater detail.
4 9 5
Article 222 of the Constitution runs thus
"Transfer of a Judge from one High Court to
another
(1) The President may, after consultation
with the Chief Justice of India transfer a
Judge from one High Court to another
High Court.
(2) When a Judge has been or is so
transferred, he shall, during the period he
serves, after the commencement of the
Constitution (Fifteenth Amendment) Act, 1963,
as a Judge of the other High Court, be
entitled to receive in addition to his salary
such compensatory allowance as may be
determined by Parliament by law and, until so
determined, such compensatory allowance as the
President may by order fix.".
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 72 of 90
The key words in this Article are ’consultation’ mid
’transfer’. What is consultation, dictionary-wise and
popular parlance-wise? It implies taking counsel, seeking
advice. An element of deliberation together is also read
into the concept. "To consult" is to apply to for guidance,
direction or authentic information, to ask the advice of as
to consult a lawyer; to discuss something together; to
deliberate." Hewey v. Metropolitan Life Ins. Co. 62 A.
600,602,100 Ne. 523 The word "consult" means to seek the
opinion or advice of another; to take counsel; to deliberate
together; to confer; to apply for information or
instruction. C.I.R. v. John A. Wathen Distillery Co.,
C.C.A. 147 F. 2d 998, 1001............. Consult" means to
seek opinion or advice of another, to take counsel; to
deliberate together; to confer; to deliberate on; to
discuss; to take counsel to bring about; devise; contrive;
to ask advice of; to seek the information of; to apply to
for information or instruction; to refer to. Teplitsky v.
City of New York. 133 N.Y.S. 2d 260, 261"-Words and Phrases-
Permanent Edition-Volume 9 Page 3
Stroud’s Law Lexicon defines ’consultation’
thus
CONSULTATION, New Towns Act, 1946 (9 & 10 Geo.
6, c. 68), s. 1 (1) 1, " consultation with
any local authorities." "Consultation means
that, on the one side, the Minister must
supply sufficient information to the local
authority to enable them to tender advice,
and, on the other hand, a sufficient
opportunity must be given to the local
authority to tender advice"-per Bucknill,
L.J., in Rollo v. Minister of Town and Country
Planning, [1948] 1 All E.R. 13 C.A.; see also
Fletcher v. Minister of Town and Country
Planning, [1947] 2 All E.R. 949.
We consult a physician or a lawyer, an engineer or an
architect, and thereby we mean not casual but serious,
deliberate seeking of informed advice, competent guidance
and considered opinion. Necessarily, all the materials in
the possession of one who consults must be unreservedly
placed before the consultee. Further, a reasonable
opportunity for
49 6
getting information, taking other steps and getting prepared
for tendering effective and meaningful advice must be given
to him. The consultant, in turn, must take the matter
seriously since the subject is of grave importance. The
parties affected are high-level functionaries and the impact
of erroneous judgment can be calamitous. Therefore, it
follows that the President must communicate to the Chief
Justice all the material he has and the course he proposes.
The Chief Justice, in turn, must collect necessary
information through responsible channels or directly,
acquaint himself with the requisite data, deliberate on the
information he possesses and proceed in the interests of the
administration of justice to give the President such counsel
of action as he thinks will further the public interest,
especially the cause of the justice system. However,
consultation is different from consentaneity. They may
discuss but may disagree; they may confer but may not
concur. And in any case the consent of the Judge involved
is not a factor specifically within the, range of Article
222.
The expression ’transfer’, as we have already indicated, in
the context of service jurisprudence is not limited to
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 73 of 90
consensual transfer. A. transfers B. when he has the power
to shift him from one place to another or from one position
to another. Intrinsically, in its transitive use, it does
not imply the consent of the transferee. Of course, in
appropriate cases such consent may be a justifiable course
or desirable in the circumstances. We may visualise
situations where seeking the consent of the potential
transferee may be a self-defeating operation. We need not
explore these aspects but may conclude that terminologically
or in the spirit of the, provision, it is not right to
insist that ’transfer’ has, as one of its components the
consent of the transferee or even of the Chief Justice of
India. The risk of rejecting the mature and specialised
counsel of the Chief Justice is not far to seek.
It would be seen that there is absolutely no provision in
this Article requiring the consent of the Judges of the High
Court before transferring them from one High Court to
another. Indeed, if the intention was that such transfers
could be made only with the consent of the Judges then we
should have expected a proviso to Article 222(1) in some
such terms as :
"Provided no Judge shall be transferred from one High Court
to another without his consent."
The absence of such a provision shows that the founding
fathers of the Constitution did not intend to restrict the
transfer of Judges only with their consent. It is difficult
to impose limitations on the constitutional provisions as
contained in Article 222 by importing the concept of consent
which is conspicuously absent-therefrom. It has already
been pointed out above that the Government of India Act,
1935 did not contain any provision for transfer which was
effectuated by appointing a Judge of one High Court as a
Judge of another High Court. The draft Constitution also
contained no such provision for transfer but when the,
Constitution was finally passed it seems to us that it must
have dawned on the founding fathers of the Constitution who
were men of learning and foresight, eminent jurists and
legal luminaries, that every
4 97
possible situation of conceivable contingency must be
covered and provided for. It was therefore that an express
provision for transfer of Judges was incorporated in Article
222(1) of the Constitution.
There is yet another aspect of the matter. As indicated
above, the Attorney-General fairly conceded that the
transfer of Judges under Article 222 was an unusual step and
could be made only in public interest which would include
compelling administrative exigencies, interest of the Judges
themselves and such other factors. If consent is imported
in Article 222 so as to, make it a condition precedent to
transfer a Judge from one High Court, to another then a
Judge, by withholding consent, could render the power
contained in Article 222 wholly ineffective and nugatory.
It would thus be impossible to transfer a Judge if he does
not give his consent even though he may have great personal
interests or close ’associations in his own State or by his
conduct he brings about a stalemate in the judicial
administration where the Chief Justice would become more or
less powerless. In our opinion, the founding fathers of the
Constitution could not have contemplated such a situation at
all. That is why Article 222 was meant to take care of such
contingencies. It was suggested by Mr, Seervai that if a
Judge misbehaved, he could be impeached according to the
provisions of the Constitution rather than transferred by
way of punishment. This argument fails to consider the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 74 of 90
practical aspects of the matter. It is not every
misbehavior or misconduct which may be sufficient to impeach
a Judge and indeed it would be difficult to prove such
misconduct or misbehaviour in the manner provided by the
Constitution in a large variety of cases. Principled
pragmatism is the soul of policy. The very fact that by
withholding consent the Judge is in a position to reduce
Article 222 to a dead letter so as to deprive it of potency,
clearly shows that the Constitution-makers never intended to
make redundant provisions.
Viscount Simon, L.C. in the case of Nokes v. Doncaster
Amalgamated Collieries Ltd. 1940 A.C. 1014 observed as
follows :
"If the choice is between two interpretations,
the narrower of which would fail to achieve
the manifest purpose of the legislation, we
should avoid a construction which would reduce
the legislation to futility and should rather
accept the bolder construction based on the
view that Parliament would legislate only for
the purpose of bringing about an effective
result."
For these reasons it is not possible for us to read the word
’consent’ in Article 222 on a construction of the plain and
unambiguous language of the Article. As earlier noticed it
was contended by Mr. Seervai that the Constitution contains
provisions in order to show the independence of the
judiciary and if we imply consent in Article 222 it will be
in keeping with the spirit of the Constitution. We are,
however, unable to agree with this argument. A provision
empowering the President to transfer a Judge, from one High
Court to another can in no way be regarded as marring the
independence of the judiciary, given the gloss we have given
to it. It will be noticed that the power under Article 222
is hedged in by several safeguards. In the first place, the
power 8-930SCI/77
498
rests in such a high authority as the President who acts on
the advice of the Council of Ministers; secondly, the power
can be exercised only in consultation with the Chief Justice
of India who is the highest judicial authority of the
country. We have already indicated that consultation as
contemplated by Article 222 is not an empty ritual or an
idle formality but is a matter of moment and must be fully
effective. We shall advert to this aspect later. In view
of the valuable safeguards laid down by the Constitution
itself, the argument of Mr. Seervai that the power is
capable of being misused cannot compel us to interpret
Article 222 by ignoring the well settled rules of
interpretation and as has been said, by playing the role not
of a Judge but of a legislator.
It was then argued by Mr. Seervai that just as in Article
217(1) which provides for appointment of a High Court Judge
consent of the Judge is not expressly mentioned in the
Constitution, but has to be implied because no Judge can be
appointed without his consent, on a parity of reasoning the
same should be said of Article 222(1). The argument,
however, suffers from a serious fallacy. In the first
place, there is a well recognised distinction between
appointment and transfer. Appointment means an initial
entry into service for the first time and no body can be
compelled to joint or enter a particular service against his
consent. In, these circumstances, therefore, appointment in
the very nature of things implies express consent of the
appointee. The same, cannot be said of a transfer after a
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 75 of 90
person is appointed to a service because transfer is an
incident of service. Once a person has entered service he
is bound by the conditions imposed either by the, Service
Rules or the Constitutional provisions. No, person after
having joined the service can be heard to say that he shall
not be transferred from one place to another in the same
service without his consent. Having accepted the service
the functionary has no choice left in the administrative
action that can be taken by empowered authorities, namely,
transfer from one place to another, assignment of work
and Judge is appointed appear in the Constitution well
before Article 222. A Judge of the High Court when be
accepts an appointment is fully aware of Article 222 under
which he can be transferred from one, High Court to another
and if being fully conscious of Article, 222 he accepts the
appointment as a Judge, of the High Court he cannot be heard
to ,say that he cannot be transferred without his consent.
In these circumstances, therefore, we are unable to agree
with Mr. Seervai that the terms appointment and transfer as
used in the Constitution are interchangeable terms conveying
the same meaning. On the other hand, Article 217 (1) (c)
runs thus :-
"The office of a Judge shall be vacated by his
being appointed by the President to be a Judge
of the Supreme Court or by his being
transferred by the President to any other High
Court within the territory of India."
It would be seen that in this constitutional provision the
words "appointed" and "transferred" have been used
separately conveying different connotations; and if the
Constitution makers had used these two terms in the said
subject in different contexts it cannot be argued
4 9 9
that these two terms are interchangeable. On the other
hand, an analysis of Article 217 (1) (c) shows that the,
constitutional provision makes a clear-cut distinction
between appointment and transfer. Similar arguments were
also advanced by the respondents regarding the requirement
of an oath as contained in Article 219 and it was contended
that because a transferee, Judge has to take an oath, it is
really an appointment and not a transfer. Article 219
merely requires a ,person who is so appointed as Judge of
the High Court to make and subscribe, oath before the
Governor of the State, or some person appointed in that
behalf by him. Technically speaking, once a Judge has taken
an oath of appointment as a Judge of the High Court he
continues to be a Judge until he attains the, age, of sixty-
two years or is removed, resigns or dies. The oath taken by
him continues until these contingencies. Thus, when a Judge
is transferred the office which he vacates is not the entire
office of the High Court Judge but only that part of the
office which he had been holding as a Judge of a particular
Court. Strictly speaking, therefore, when a Judge is
transferred from one High Court to another under the clear
sanction of law, namely, Article 222 (1 ) of the
Constitution a fresh oath is not necessary. But even if on
a liberal interpretation of Article 219 such an oath may be
necessary when a Judge is transferred from one High Court
to, another and before he enters in his new office as a
transferee Judge, that, however, does not at all show that a
Judge cannot be transferred without his consent.
Again, there are clear indications in the scheme of the
Constitution itself to, show that a distinction is sought
to, be made between appointment and transfer as pointed out
above, and even the need to take consent, and when, was
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 76 of 90
resent to, the mind of the makers of the Constitution. For
instance, Article 224A is a provision for appointment of
retired Judges. The proviso expressly enjoins that a Judge
shall sit and act as a Judge of the High Court with his
consent. The proviso to Article 224A runs thus:-
"provided that nothing in this Article shall
be deemed to require any such person as
aforesaid to sit and act as a Judge of that
High Court unless he consents so to do."
The reason for insisting on consent is that a retired Judge
cannot be compelled to work as an ad hoc Judge against his
consent because, after having retired from service he ceases
to be a Judge of the High Court and is not bound by the
conditions of service. On the other hand, in Article 127
which provides for appointment of a sitting Judge of the
High Court to act as an ad hoc Judge of the Supreme Court,
there is an express provision in the shape of clause (2) of
Article 127 making it incumbent on the sitting Judges to
attend the sittings of the Supreme Court. Here the consent
of the sitting Judge of the High Court is not needed.
Clause (2) of Article 127 runs thus :-
"It shall be the duty of the Judge who has
been so designated, in priority to other
duties of his office to attend the sittings of
the, Supreme Court at the time and for the
period for which his attendance is required,
and while so attending be shall
5 0 0
have all the jurisdiction powers and
privileges, and shall discharge the duties, of
a Judge of the supreme Court."
Mr. Seervai sought to make a distinction on the ground that
the word ’request appearing in Article 127 clearly shows
that the Judge must give his consent before he can be asked
to work as an ad hoc Judge. In our opinion, such as
interpretation is not possible. The word ’request’ has been
used as a matter of courtesy because the, previous consent
of the President of India is taken by the Chief Justice of
India and then a request is made to, the sitting Judge
concerned. It is only in this context that the word
’request’ has been used but the language of clause (2) of
Article 127 is clear that the sitting Judge, after a request
is made to him, has no option in the matter but to act as an
ad-hoc Judge of the Supreme Court. Indeed, if according to
the submission of Mr. Seervai the word ’request’ appearing
in Article 127 (1) would include consent then clause (2)
would have become redundant. The words "it shall be the
duty of the Judge who has been so designated" clearly
imposes a statutory obligation on the Judge to accede to the
request made by the Chief Justice under Article 127 of the
Constitution. It would thus appear that the Constitution
itself specifies ’consent’ where, it is intended and omits
it when unnecessary. if, therefore, the Constitution-makers
intended that under Article 222 a Judge cannot be
transferred from one High Court to another without his
consent then it should have been expressly so mentioned in
the Constitution. Against this background if we approach
the problem by interpreting Article 222 the absence of the
word "consent" in Article 222 or in any other provision
(requiring consent of the Judge before his transfer) clearly
shows that the transferees consent is not within the purview
of Article 222.
It was then argued that in the, case of the subordinate
judiciary the power of transfer is vested in the High Court
whereas in the case of High Court Judges it is vested in the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 77 of 90
executive authority, namely, the President acting on the
advice of the Council of Ministers and thus if Article 222
could be utilised without the consent of the Judges when the
Judges of the High Courts would be worse off than the
members of the subordinate judiciary’ This argument, though
attractive, fails to take into consideration certain
important factors. In the first place, in the case of the
subordinate judiciary transfer being one of the usual
incidents of the service and being a usual feature which has
to take place, from time to time the power vests in the High
Court. As already indicated, the power under Article 222 is
to be exercised only exceptionally and in public interest;
and where it becomes expedient and necessary in the public
interest, especially of judicial administration, effective
consultation with the Chief Justice of India, as a sine qua
non, takes care of executive intrusions.
Lastly, it was submitted that during the last 25 years the
Government had itself interpreted Article 222 as implying
consent and a large number of Judges who were transferred
during this period were transferred only with their consent.
A schedule to the petition gives details of such Judges.
Reliance was placed on the speech of Mr. Asoke Sen where be
bad said that a healthy convention should be
501
set up not to transfer judges from one High Court to another
without their consent. It was thus argued that those who
were in charge of the working out of the Constitution had
themselves interpreted Article 222 so as to imply consent of
the Judge before transferring him from one High Court to
another.
A table of judges transferred with their consent was
furnished, hopefully to drive home the plea that the working
of Art. 222 for a silver jubilee span of years acknowledged
that consent of the transferee was a necessary component.
Two comments nullify this wishful thinking. A long-held,
wholesome convention is a tribute to the wisdom of the
President and his advisers and the Chief Justice, but cannot
amend the sure import of the provision by hindsight.
Secondly, closely analysed each such transfer has benefited
immediately the Judge concerned. His consent, in such a
situation, can never be a guide to control the clear
intendment of the article reflected in its unambiguous
terms. To rewrite the Constitution, by the art of
construction, passionately impelled by contemporary events,
is unwittingly to distort the judicature scheme our founders
planned with thoughtful care and to wish into words that
plain English and plainer context cannot sustain. Ample as
judicial powers are, they must be exercised with the
sobering thought jus dicere et non jus dare (to declare the
law, not to make it). Moreover, Mr. Seervai himself agreed
that when we interpret a constitutional provision, a mere
convention based on several considerations cannot be taken
as conclusive of the scope of the Article.
We are therefore clearly of the view that on an obvious
interpretation of Art. 222, the concept of consent cannot be
imported therein. By healthy convention, normally the
consent of the Judge concerned should be taken, not so much
as a constitutional necessity but as a matter of courtesy in
view of the high position that is held by him. But there
may be cases where, if the Judge does not consent and the
public interest compels, the power under Art. 222 can ’be
exercised.
If we may tersely sum up, the impact of other Articles, the
embrace of the ’independence’ creed, the influence of
administrative precedents and the explosive allergy to the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 78 of 90
plurality of transfers which are not before the Court,
cannot be permitted to subjectify judicial construction to
invite the comment ’Thy wish was father, . . . . to that
thought’. Charity to the capacity of the illustrious dead
whose learned toils and deliberate pens drafted Art. 222
behaves us not to stultify them in their silent graves by
slurring over the express language interpretatively to
invent a hidden veto power.
The next point for consideration in this appeal is as to the
nature, ambit and scope of consultation, as appearing in
Art. 222(1) of the Constitution, with the Chief Justice of
India. The consultation, in order to fulfil its normative
function in Art. 222(1), must be a real, substantial and
effective consultation based on full and proper materials
placed before the Chief Justice by the Government. Before
giving his opinion the Chief Justice of India would
naturally take into consideration all relevant factors and
may informally ascertain
502
from the Judge concerned if he has any real personal
difficulty or any humanitarian ground on which his transfer
may not be directed.. Such grounds may be of a wide range
including his health or extreme family factors. It is not
necessary for the Chief Justice to issue formal notice to
the Judge concerned but it is sufficient-althongh it. is not
obligatory-if he ascertains these facts either from the
Chief Justice of the High Court or from his own colleagues
or through any other means which the Chief Justice thinks
safe, fair and reasonable. Where, a proposal of transfer of
a Judge is made the Government must forward every possible
material to the Chief Justice so that he is in a position to
give an effective opinion. Secondly, although the opinion
of the Chief Justice of India may not be binding on the
Government it is entitled to great weight and is normally to
be accepted by the Government because the power under
Article 222’ cannot be exercised whimsically or arbitrarily.
In the case of Chandramouleshwar Prasad v. Patna High Court
& Ors.(1) while interpreting the word "consultation" as
appearing in Article 233 of the Constitution this Court
observed as follows :-
"Consultation with the High Court under
Article 233 is not an empty formality. So far
as promotion of officers to the cadre of
District Judges is concerned the High Court is
best fitted to adjudge the claims and merits
of persons to be considered for
promotion...... We cannot accept this,
Consultation or deliberation is not complete
or effective before the parties thereto make
their respective points of view known to the
other or others and discuss and examine the
relative merits of their views. If one party
makes a proposal to the other who has a
counter proposal in his mind which is not
communicated to the proposer the direction to
give effect to the counter proposal without
anything more, cannot be said to have bee
n
issued after consultation."
In Samsher Singh’s case (2) one of us has struck the same
chord It must also be borne in mind that if the Government
departs from tile opinion of the Chief Justice of India it
has to justify its action by giving cogent and convincing
reasons for the same and, if challenged, to prove to the
satisfaction of the Court that a case was made out for not
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 79 of 90
accepting the advice of the Chief Justice of India. It
seems to us that the word ’consultation’ has been used in
Article 222 as a matter of constitutional courtesy in view
of the fact that two very high dignitaries are concerned in
the matter, namely, the President and the Chief Justice of
India. Of course, the Chief Justice has no power of veto,
as Dr. Ambedkar explained in the Constituent Assembly.
The dangers of arbitrary action or unsavoury exercise has
been minimised by straight-jacketing of the power-of
transfer. Likewise, the high legal risk of invalidation of
any Presidential order made in the teeth of the Chief
Justice’s objection, runs in an added institutional
protection. For it is reasonable for the court before which
a Judge’s transfer is challenged, to take a skeptic view and
treat it as suspect if the Chief Justice’s advice has been
ignored. And, in the light of
(1) [1970] SCR 666.
(2) AIR 1974 SC 2192.
5 0 3
the protective responsibility lying on the shoulders of the
Chief Justice in filling the bill as a constitutional
consultant and the chance of successful challenge, if the
consultation proves a futility from either end, the, judges
of the High Court can enjoy all reasonable immunity. The
monitoring mechanism will work well. And, where it does
not, the Court, sitting in review of the action challenged
(we hope these occasions will be rare and judicial
demolition of presidential orders extremely few) will
remember that the highest constitutional functionaries have
an accountability to the justice constituency, i.e., the
nation, that transfer is an exception but not totally banned
and that a vicious or wayward judge cannot expect better
justice or an independent judge of probity better immunity
than is provided in the Constitution which binds him.
The speech of Shri A. K. Sen (Law Minister), the 14th Report
of the Law Commission of India opposing and resolutions of
the bar in 1967 favouring transfers of judges are neither
here nor there. Nor can the heroic chapters of British
judicial history directly assist to interpret. Each nation
has its developmental course and derives inspiration from
several sources. And the Court must decide on the basis of
the Constitution as it is.
Logamachy may confuse, philosophy may illumine, teleology
may shed interpretative sheen. We have considered the
design, the source, the impact and the engineering aspects
of Article 222. At the end of the journey we feel clearly
that the power of non-consentaneous transfer does exist.
Salutary safeguards to ensure judicial independence with
concern for the All-India character of the superior courts
in the context of the paramount need of national unity and
integrity and mindful of the advantages of inter-state
cross-fertilisation and avoidance of provincial
perviciousness were all in the calculations of the framers
of the Constitution. A power is best felt by its aware pre-
sence and rare exercises.
We have earlier stated that the appeal has happily ended by
consensus. The deeper constitutional issues have been
considered and answered by us, responding to our duty under
Article 141 and to avoid future shock to the cardinal idea
of justice to the justices. Sri Seervai drew our attention
to the course adopted by the Judicial Committee did in Don
John Francis Douglas Liyanage v. The Queen (1967 1. A.C.
259). The highest court with constitutional authority to
declare the law cannot shrink from its obligation because
the lis which has activised its jurisdiction has justly been
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 80 of 90
adjusted. Moreover, full debate at the bar must be followed
by fair judicative declaration. Now that the law is
settled, ad hoc operations must be abandoned in favour of
known finer normae. The 1st respondent has, fighting for a
cause, won the battle and the war. The appellant,
venerating the constitutional creed, has gained its object
of getting the battle lines drawn clear and of delineation
of the dharma concretising the zones of the President and
the Chief Justice in the delicate function of transfer of
High Court judges. Avoiding callous under-esti-
504
mation and morbid exaggeration, we must realise that the
independence of the judiciary is vital but is only an inset
in the larger picture of the nation’s free, forward march.
UNTWALIA, J.-On or about the 27th May, 1976 about 16 Judges
including some Chief Justices of the various High Courts
were transferred by the President of India from one High
Court to another. It is said that it was so done, after
consultation with the Chief Justice of India. One of the
Judges transferred was Shri Justice Sankalchand Himatlal
Sheth, a Judge of the High Court of Gujarat. He was trans-
ferred to the High Court of Andhra Pradesh. The
notification transferring him reads as follows
"In exercise of the powers conferred by clause
(1) of, Article 222 of the Constitution of
India, the President after consultation with
the Chief Justice of India, is pleased to
transfer Shri Justice Sankalchand Himatlal
Sheth Judge of the High Court of Gujarat, as
Judge of the High Court of Andhra Pradesh with
effect from the date he assumes charge of his
office."
Shri Justice Sheth challenged the order of his transfer by a
writ petition filed in the Gujarat High Court. In pursuance
of the order, however, he joined the Andhra Pradesh High
Court and did not ask for any stay. His writ petition was
heard by a Special Bench of three Judges, who by a
unanimous order, although for some varying reasons given in
their separate judgments, declared the transfer order dated
May 27, 1976 as illegal, invalid and ultra vires. They
issued mandamus against the Union of India, the first
respondent in the writ petition, to treat the, said order’
as of no legal effect and to desist from giving effect or
continuing to give effect to it. The Union of India filed
the present appeal by certificate of the High Court granted
under Articles 132 and 133(1) of the Constitution of India.
The Judge concerned is Respondent No. 1 in this’ appeal.
Shri Ajit Nath Ray, the then Chief Justice of India, who was
also made a party respondent in the writ petition, is
respondent No. 2 in the appeal..
Shri S. V. Gupte, Attorney General of India for the
appellant and Shri Seervai, learned counsel for Respondent
No. 1 (hereinafter to be called the respondent) advanced
very able, learned and exhaustive arguments but ultimately
asked us to pass an order in the appeal in terms as agreed
to between them. On the conclusion of the hearing of the
appeal we recorded our order on the 26th of August, 1977,
the agreed terms of which are as follows :-
"On the facts and circumstances on record the
present Government do not consider that there
was any justification for transferring Justice
Sheth from Gujarat High Court and propose, to
transfer him back to that High Court.
On this statement being made by the learned
Attorney General, Mr. Seervai, Counsel for
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 81 of 90
Respondent No. 1 Justice S. H. Sheth)
withdraws the writ petition with leave of the
Court."
505
The appeal thus could be allowed to stand disposed of
finally on the basis of the consent order alone but
considering that the points involved in it were of great
public importance we thought it necessary and expedient to
pronounce our judgment on the same. We accordingly do so
today.
The Judicial Committee of the Privy Council in the case of
Ardeshir Matha v. Elora Sassoon(1) had adopted a similar
course almost under similar circumstances. Lord
Olanesburgh, in delivering the judgment of their Lordships,
observed as follows at page 366
"In his argument before the Board counsel for
the respondent placed his view of the matter
in the forefront of his argument and it was
fully dealt with by Mr.Upjhon in his reply for
the appellant. In these circumstances their
Lordships think, that whether or not this
appeal can be disposed of without further
reference to it, they ought to express their
views upon so important a question of practice
now that it has been raised and fully argued.
In such a matter certainty is more important
than anything else. A rule of practice, even
if it be statutory, can when found to be
inconvenient be altered by competent
authority. Uncertainty in such a matter is at
best an embarrassment and may at its worst be
a source of injustice which, in some cases,
may be bound Judicial remedy. Accordingly, in
this judgment, their Lordships will deal with
all the matters in controversy to which they
have referred, irrespective of the question
whether the last of them of necessity now
calls for determination at their hand".
Broadly speaking, only two or three points require our
careful consideration and adjudication. Several points were
urged before the High Court but Mr. Seervai candidly stated
before us that he did not want to pursue and press the
question of promissory estoppel and the principle of
violation of natural justice before making the order of
transfer. He, however, submitted with great emphasis that
the power of transfer under Article 222(1) of the
Constitution could not be, exercised or made effective
without the consent of the Judge concerned. In the context
of the high pedestal and the independence of the judiciary
enshrined in our Constitution and some of the relevant
articles the transfer envisaged was a consensual transfer
and not a unilateral order of transfer forcing a Judge to go
from one High Court to the other. Counsel further submitted
that the consultation with the Chief Justice of India spoken
of in the article aforesaid cannot be a mere formal ’or
nominal consultation just by way of an empty formality. It
must be real and effective after placing all materials
before the Chief Justice of India in support of the proposed
action of transfer by the President. There is no gain
saying the fact that the power conferred on the President is
not to be exercised by
(1) 55 Indian Appeals, 360.
506
him in his discretion but it has got to, be exercised on the
advice of the Council of Ministers or the Ministers
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 82 of 90
concerned. In other words, the order of transfer
is, in substance and effect, an action of the Central
Government.
My learned brother Chandrachud, J. has dealt with the point
of consultation with the Chief Justice of India elaborately
and in great details. Largely and generally I
respectfully agree with his views expressed in this regard.
I may, however, add, even though it may be a repetition,
that no order of transfer can be made by the President
without the consultation with the Chief Justice of India.
Such a consultation is condition precedent to the making of
the order. All necessary facts in support of the proposed
action of transfer must be communicated to him and all his
doubts and queries must be adequa rely answered by the
Government. Ordinarily and generally the views of the Chief
Justice of India ought to prevail and must be accepted. The
Government, however, as rightly conceded by Mr. Seervai, is
not bound to accept and act upon the advice of the Chief
Justice. It may differ from him and for cogent reasons may
take a contrary view. In other words, as held by this Court
in the case of Chandramouleshwar Prasad v. Patna High Court
& Ors.(1) the advice is not binding on the Government
invariably and as a matter of compulsion, in law. Although
the decision of this Court in Chandramouleshwar Prasad’s
case was with reference, to the interpretation of Articles
233 and 235 of the Constitution, on principle there is
hardly any difference.
To invoke the principle of natural justice in the case of
transfer of a Judge under Article 222(1) if otherwise it is
permissible to make the transfer without his consent, will
be, stretching the principle, to a breaking point. It will
lead to many unpractical, anomalous and absurd results and
will have inevitable repercussions in the order of transfers
made in other branches of service either under the Union or
the States. The only thing one may say is that it will be
open to the Chief Justice of India, rather, he will be well-
advised to do so, to make such inquiries and from such
quarters as he may think, fit and proper to do in order to
satisfy himself apropos the desirability, advisability and
the necessity of the proposed transfer. Inquiries from any
of his colleagues in the Supreme Court and especially from
the one coming from the High Court, a Judge of which, is
proposed to be transferred as also from the concerned Judge
will be highly beneficial and useful.
In terms there is nothing indicated in Article 222(1) as to
what could be the basis of and the grounds on which an order
of transfer can be made. It was, however, accepted by all
concerned that the transfer can be made only in public
interest or on the ground of public policy which sometimes
has been characterised by eminent jurists as an unruly
horse. A definition of these terms in a ’Strait jacket or
an exhaustive list of matters of public interest is neither
feasible nor advisable. In answer to my query the learned
Attorney
(1)[1970] 2 S.C.R., 666.
507
General was good enough to give a few examples, namely, (1)
that a particular Judge is not pulling on well with the
Chief Justice and his colleagues in the High Court; (2) that
any other High Court and especially a small one, needs the
services of a Judge proficient in a particular branch of
law; and (3) the general public policy of the Government of
India declared from time to time has been that for the
purpose of national integration an appreciable number of
Judges in a particular High Court should be from other
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 83 of 90
States, so on and so, forth. There, may also be a necessity
of a transfer of a Judge on the ground that a Judge is not
of good behaviour such as not being above board in the
matter of integrity and honesty, being either corrupt or
showing favour to a section of the members of the Bar, or he
is a casteist or parochial in his approach in the
administration of justice or the judiciary in the State. It
would be undoubtedly in the public interest to send him from
one High Court to another. This may not completely put a
stop to his misdeeds but may minimise them appreciably.
Such a transfer, however, as also the transfer on the ground
that he is not pulling on well with the Chief Justice or his
colleagues in the High Court will be punitive in character.
Apart from the other difficulties, which I shall be
presently discussing, in the way of translating into action
such a transfer in public interest, I may just indicate
here, that in such a situation the action being punitive in
natural justice. Setting up of an impartial Committee or
Tribunal for’ deciding such cases of transfer may be
necessary in order to maintain the independence of the
judiciary. When an order of transfer is challenged by the
Judge concerned in an appropriate legal proceeding
tremendous difficulties will have to be faced in the matter
of judging as to what extent the materials can be disclosed
in court, how far the Government will be able to claim
privilege from disclosure, how will be judged the truth or
otherwise of the allegations made. At this stage I am not
focussing my attention on these matters for the purpose of
deciding any of the questions posed so far but I am doing so
with the object of expressing my considered view on the
question as to whether a transfer can be made without the
consent of the Judge concerned or not. The purpose of
national integration, if otherwise it is a good thing to be
achieved, or the need of particular High Court for a Judge
possessing a particular, type of proficiency or some such
grounds of public interest can well be achieved at the time
of the initial appointments; as for example, a member of the
Bar practicing in a particular High Court may be, appointed
at the, very threshold, if he so agrees to be appointed, a
Judge of another High Court so that after retirement he may
come back and resume his practice in the High Court where be
was so doing. I shall, perhaps, be crossing my permissible
limits if I embark ’to write an essay or a, thesis on the
various aspects of the needs of such public interest high-
lighting the minus points also in them, nor will it serve
any useful purpose. These are matters of policy decision
entirely within the realm of the governmental power.
I.however, cannot check myself from pointing out one more
socalled example of public interest said to be in the
alleged justification of the order of transfer. I need not
elaborately refer to all the facts
5 08
which are in the records of this case to justify the hints
which I am going to throw hereafter. The provision for
compensatory allowance made in clause (2) of Article 222 was
deleted in 1956 but was re-introduced in the year 1963 when
Shri A. K. Sen was the Law Minister of the Government of
India. From his speech quoted in the judgment of the High
Court as also from other facts given in the counter of the
Union Government it is clear that although several transfers
were made during ’the period of about 25 years since the
advent of the Constitution, invariably as a matter of
prudence, if not cerned. Mr. Sen in his speech also
laid stress on this aspect of the matter. What led, all
of a sudden, the then Central Government during the time of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 84 of 90
emergency in the year 1976 to suddenly transfer, as many as
16, Judges from one High Court to the other. How did the
necessity of public interest sprout so suddenly which led
the Government to make this mass transfer ? Allegations with
reference to the particular examples were, made in the writ
petition of the respondent to show that by and large only
those Judges were picked up for transfer who during the
period of emergency had delivered judgments which were not
to the liking of the then Government. These, allegations
were controverted in the counter of the Union Government.
Truth or otherwise of the facts alleged were perhaps not
justiciable in the case, or in any event, could not be
adjudicated upon. But one thing is certain which I would
venture to say’, and perhaps not unjustifiably or by
crossing the, permissible limits, that the order of transfer
of ;so many Judges at one and the same time created a sense
of fear and panic in the minds of the Judges and others
throughout the country and led them to suspect strongly that
the orders of transfers were made by and large in cases of
Judges who had shown exemplary courage and independence even
during the period of emergency in delivering judgments which
were not the liking of the men in authority, including the
judgments in many MISA cases. I am not concerned to say
here whether the judgments delivered were right or wrong. No
body can say that a Judge is liable to be transferred.
because he has delivered a wrong judgment.
But one thing is certain’. and I again take courage to
say so with the utmost responsibility that the panic created
had shaken the very foundation and the structure of the
independence of the judiciary throughout the country.
In a democratic set up of our country, as enshrined in the
Constitution, the judiciary, in one sense is not a structure
of a very big magnitude, but surely it is like a watching
tower above all the big structures of the other limbs of
State. From the top of its respective towers, the highest
judiciary either by it in the State or in the Centre keeps a
watch like a sentinel on the functions of the other limbs of
the State as to whether they are working in accordance with
the law and the Constitution, the Constitution being
supreme. History of the world in some countries is not
wanting in examples to illustrate and indicate that those
wishing to deviate from democracy do not always like and
relish the watching of their actions by the sentinels;
calculated and designed attempts were made to erode the
structure of the tower bit by bit. There have been and may
be several methods to do so. One of them-may be, if there is
any truth in it, to transfer Judges who
509
do not toe the line of the Government in power or fall in
the current of their philosophy. How dangerous will it be to
permit such thing by granting of a bald and unbridled
power to the Central Government to achievesuch an object
I may add that the safety valve of the effective
consultation with the Chief Justice of India may not prove
to be sufficiently effective to check up this tendency of
the executive. There may be several methods of setting at
naught the check of the safety valve. it needs no
elaboration.
To some extent the remarks made by me above are illustrated
by the terms of the consent order itself. Democratic
franchise brought about a change in the Government and ’the
present Government categorically say that they "do not
consider that there was any justification for transferring
Justice Sheth from Gujarat High Court and propose to
transfer him back to that High Court." One is merely left to
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 85 of 90
conjecture what public interest led the previous Government
to transfer Shri Justice Sheth; which the present Government
found to be unjustified. Supposing there is a change of
Government again then Justice Sheth may be transferred
again. Are the Judges, thus, to be treated like a pack of
tobacco to be transferred from one place to another at the
sweet-will of the Government ?
In the background set out above I now come to the real grip
of the matter as to whether a transfer can be made without
the consent of the Judge concerned under Article 222 (1)
which reads thus :
"222. Transfer of a judge from one High Court
to another,-(1) The President may, after
consultation with the Chief Justice of India,
transfer a Judge from one High Court to any
other High Court."
There are no words of limitation either express or implicit
in the Article; nor do I think that Mr. Seervai is quite
accurate and correct in pressing into service the canons of
interpretation laid down in some, of the cases viz., The
River Wear Commissioners v. William Adamson(1) and R. M. D.
Chamarbaugwalla v. The Union of India(2). There are cases
and cases, one line taking the view that no words may be
added to or subtracted from the statute while interpreting
it. If it has a plain and unambiguous meaning it must be
adhered to,. If there is any ambiguity it may be resolved
on principles well-known and fully established. There is
another line of cases taking the view that the Courts should
try to understand the real intention of the Legislature and
the true meaning of the words used. In such cases the
history of the legislation, its purpose, context and the
object to be achieved were pressed into, service for
interpreting it even though the words used in the statute
were not ambiguous or uncertain. But I am of the view that
this line of reasoning will not solve the difficulty of
interpreting Article 222 in the manner suggested by Mr.
Seervai. The key to the solution lies in the various
Articles of the Constitution itself. It is of a different
kind. That key has to be discovered and found out, of
(1) [1876-77] 2A.C.743.
(2) [1957] S.C.R. 930.
510
course, in the background of the various salient and the
highest principles of maintaining the independence of the
judiciary as far as it is permissible to do so within the,
terms of the Constitution. There is no AU India cadre of
High Court Judges in our country. Of and on there has been
a talk or debate in this regard. Whether it will be
advisable to do so or not is a very controversial matter and
I refrain from expressing any opinion of mine on this issue
as it is neither advisable nor necessary to do so.
Section 200 of the, Government of India Act, 1935 provided
for the establishment and constitution of a Federal Court
consisting of a Chief Justice and certain number of other
Judges. Under subsection (3)(a) a Judge of a High Court
(leaving aside the details) was qualified for the
appointment as a Judge of the Federal Court. Under section
200 a High Court consisted "of a Chief Justice and such
other Judges as the Governor General may from time to time
deem it necessary to appoint". Under sub-section (2) every
Judge of a High Court was entitled to hold office until he
attained the age of 60 years but it was subject to three
provisos mentioned therein : (a) a Judge could resign his
office; (b)He could be removed from his office on the ground
of mis-behaviour or of infirmity of mind or body etc; (c)
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 86 of 90
the office of the Judge stood vacated "by his being
appointed to be a Judge of the Federal Court or of another
High Court Neither in proviso (c) nor in any other section
of the, Government of India Act was the word ("transfer"
used or such a power conferred in terms on the Governor
General.
Now let me examine the relevant provisions of the
Constitution of India. Article 124 provides, for the
establishment and constitution of the Supreme Court as
consisting of a Chief Justice of India and certain number of
other Judges. A Judge of the Supreme Court is appointed
under clause (2) of Article 124. He holds office until lie
attains the age of 65 years subject to two provisos, viz.,
(a) resignation and (b) removal. A Judge of the High Court
is qualified to be appointed as a Judge of the Supreme Court
under clause (3) (a). Under clauses (4) and (5) a Judge of
the Supreme Court may be removed on the ground of proved
misbehaviour or incapacity.
As I have said above, there is no All India cadre of High
Court Judges. Article 214 says. "there shall be a High
Court of each State". According to Article 216 "Every High
Court shall consist of a Chief Justice and such other Judges
as the President may from time to time deem it necessary to
appoint". Appointment and conditions of the office of a
Judge of a High Court are provided for in Article 217 which
clearly indicates that a qualified person is appointed as a
Judge of particular High Court in a particular State at the
threshold. He is entitled to hold office as a Judge of that
High Court until he attains the age of 62 years. But this
is subject to, three exceptions mentioned in the proviso
appended to clause (1) of Article 217. Provisos (a) and (b)
respectively deal with the resignation from the office of a
Judge by his voluntary action and his removal from office in
the manner provided in clause (4) of Article 124 as in the
cases of the remove at of a
511
Judge of the Supreme Court. Proviso (c) is important and is
as follows :
" the office of a Judge shall be vacated by
his being appointed by the President to be a
Judge of the Supreme Court or by his being
transferred by the President to any other High
Court within the territory of India."
Article 222(1) confers power on the President
to transfer. Before I make my comments it is
necessary to read Article 219 which says
"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."
Similarly, in the case of a Supreme Court
Judge it has been provided in clause (6) of
Article 124 :
"Every person appointed to be, a Judge of the
Supreme Court shall, before he enters upon his
office, make and subscribe before the
President, 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."
The important thing to notice is that if the office of a
Judge is vacated by his resignation or removal, there is no
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 87 of 90
question of his re-entering the office of a Judge either of
the Supreme Court or the High Court; but if the office is
vacated under proviso (c) of Article 217 then on appointment
as a Judge of the Supreme, Court he has to re-enter and
occupy that office in accordance with Article 124 (6). What
is the effect of the office, of a Judge being vacated by his
transfer to any other High Court? Does it stand vacated as
soon as the order of transfer is made ? Or, is it vacated
when he assumes office as a Judge of the High Court to which
he is transferred? Proviso (c) provides for the vacation of
the office of a Judge of the High Court from which he is
transferred but Article 222 does not make any provision for
re-entering office or occupying it as a Judge of the
different High Court to which he is transferred. The only
mode and the procedure left for that purpose is to be found
in Article 219 and no where else. The mere order of
transfer does not make him a Judge and a member of the High
Court to which he is transferred. There is no such
condition of service or office of a Judge provided for in
the Constitution or in any other law. Appointment as a
Judge to the Supreme, Court and transfer to another High
Court within the meaning of proviso (c), in my opinion, are
in substance on the same footing. Appointment of a High
Court Judge to be a Judge of the Supreme Court is not a mere
act of transfer as it is an appointment to a higher Court.
Yet for the continuity of the service, pension, travelling
allowance etc. it has been treated as a transfer of the
Judge from the High Court to the Supreme Court for being
appointed to the latter Court. The word "transfer" has been
used in proviso (c) of Article 217(1) and Article 222(1)
because the
512
transfer is from one high Court to another as a high Court
Judge and not to any superior Court. But yet the effect of
the transfer is to make the Judge transferred to vacate his
office of a Judge of the High Court from which he is
transferred and to appoint him as a Judge of the High Court
of another State. For the purpose of continuity of service,
pension, travelling allowance etc., there, is hardly any
difference between the case of appointment of a High Court
Judge to the Supreme Court, and transfer to, another High
Court.
I may lend further support to the view expressed above, as
rightly pointed out by Mr. Seervai, from the two matters in
the Schedules to the Constitution. Clause, 1 1 (b) of Part
D of the Second Schedule says
"Actual service" includes--
(ii) joining time on from a High Court to the
Supreme Court or from one High Court to
another.
It is plain that the joining time on transfer in both the
cases will keep the Judge transferred either to the Supreme
Court or to the High Court, a Judge of the High Court from
which he is transferred until he assumes charge of his
office on appointment as a Judge of the Supreme Court or of
another High Court. The form of oath or affirmation to be
made by the Judge of High Courts as prescribed in the Third
Schedule clearly indicates that under Article 219 the Judge
takes the oath on his being ,appointed to be a Judge of a
particular High Court and not of any High Court in India.
To me it appears, and I say at the cost of repetition, that
a transferred Judge cannot become a Judge of the High Court
to which he- is transferred without taking his fresh oath in
accordance with Article 219 and in the form prescribed in
the Third Schedule. It was appointed out by the Attorney
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 88 of 90
General that if it was so then the requirement of
consultation with the Governor of d State and the Chief
Justice of the High Court to which a Judge is transferred in
accordance with clause (1) of Article 217 was also necessary
but there is no such provision in Article 222. To, me it
appears that it may be a lacuna or this may not have been
thought quite necessary. But that does not take away the
effect of Article 219.
In State of Assam v. Ranga Mahammad and Ors (1).
Hidayatullah, J., as he then was, delivering the judgment on
behalf of a Constitution Bench, with reference to the
interpretation of Articles 233 and 235 pointed out at page
460.
"In the, same way the word ’posting’ cannot be
understood in the sense of ’transfer’ when the
idea of appointment and promotion is involved
in the combination. In fact this meaning is
quite out of place because ’transfer’ operates
at a stage beyond appointment and promotion."
The above passage would lend support the view that transfer
operates at a stage beyond appointment. But then, a vital
distinction has to
(1) [1967] 1 S.C.R. 454.
51 3
be noticed between the language of the various Articles in
Chapter V of Part VI mentioned above and Article 233
occurring in Chapter VI of that Part. The said Article in
terms uses the words :-
"Appointments of persons to be, and the posting and promo-
tion of, district Judges in any State..............
The appointment, therefore, is to the post of a District
Judge in a particular State and not for holding the
office of a District Judge in a particular District. Similarly,
there are other AR India Services, such as in the Income Tax
Department, in the Income Tax Appellate Tribunal, in the
Customs Department etc. where the appointments are to the
All India cadre in a particular service. In such a service
orders of transfers are made transferring a particular
officer from one place to another. ,In terms it does not
require vacating his office of the post in a particular
place, and assumption of it in another place in any
prescribed form or special manner. The mere order
of transfer brings about both the results. In the case of
High Courts, however, they being the courts of record and
the highest courts in the federal structure of our
Constitution in their respective States, the founding-
fathers adopted a different scheme. Although they made a
departure in providing for transfer of a Judge from one High
Court to another in Article 222 from the provisions of the
Government of India Act, in substance, they did not do so,
as they did not prescribe any mode for the transferred Judge
acquiring his office of a Judge of the High Court to which
he is transferred. The provision apparently conferring this
bald power on the President seems to have been made just for
the purpose of keeping it so on the Statute Book and not for
the purpose of utilizing it in the manner it was done in
the year 1976. In my considered judgment it could not be so
utilised. It may well be that public interest in some cases
does require and necessitate the transfer of a Judge from
one High Court to another but it is strange to think that a
Judge could be compelled to vacate his office of the Judge
of a High Court to which he was initially appointed and
assume office as a Judge of another High Court without his
consent. If this view was possible to be taken in the case
of transfer, it was all the more reasonable to do so in the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 89 of 90
case of appointment of a High Court Judge to be a Judge of
the Supreme Court. Articles dealing with appointments of
Judges either to the High Court or to the Supreme Court do
not, in terms, require the consent of the appointee, yet no
body has suggested so far nor could any body do so with
any semblance of justification that a Judge of the High
Court can be appointed a Judge of the-Supreme Court without
his consent. Public interest may require that he should be
so appointed. But at the same time public interest also
demands non-interference with the independence of the
judiciary by not forcing a Judge to vacate his office of a
Judge of the High Court to which he was appointed and to
accept the office of a Judge of the Supreme Court or the
High Court without his consent, until and unless a special
law or procedure has been made or prescribed guarding
against any inroad on the independence of the judiciary.
9-930SCI/77
514
I am tempted to adopt the reasoning of Lord Reid and Lord
Pearce given in the quotations of their speeches in the case
of Rondel v. Worsley(1). Quoting Lord Justice Fry at page
229 Lord Reid has said
"The rule of law exists, not because the
conduct of those persons ought not of itself
to be actionable, but because if their conduct
was actionable, actions would be brought
against judges and witnesses in cases in which
they did not spoken with malice, in which they
had not spoken with falsehood. It is not
a desire to prevent actions from being brought
in cases where they ought to be maintained
that has led to the adoption of the present
rule of law; but it is the fear that if the
rule were otherwise, numerous actions would be
brought against persons who were merely
discharging their duty. It must always be
borne in mind that it is not intended to protect
malicious and untruthful persons, but that it
is intended to protect persons acting bona
fide, who under different. rule would be
liable, not perhaps to verdicts and judgments
against them, but to the vexation of defending
actions."
Lord Pearce has quoted at page 269 a passage from the speech
of Lord Earl of Halsbury, L.C., which- runs as follows
"It is very obvious that the public policy
which renders the protection of witnesses
necessary for the administration of justice
must as a necessary consequence involve that
which is a step towards and is part of the
administration of justicenamely, the
preliminary examination of witnesses to find
out what they can prove. It may be that to
some extent it seems to impose a hardship, put
after all the hardship is not to be compared
with that which would arise if it were impos-
sible to administer justice, because people
would be afraid to give their testimony."
I am not concerned to examine in the case whether the law in
India in this regard is exactly the same or not but I felt
tempted to quote those passages to show that there may be
necessity and justification on the ’ground of public
interest or policy for the transfer of Judges from one High
Court to another, although it may be few and far between or
even punitive in character, but to, do so without the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 90 of 90
consent of the Judge concerned will bring about devastating
results and cause damage to the tower of judiciary and
erosion in its independence. If adequate safeguards are
provided for to examine individual cases on merits by an
impartial and independent body, the matter may be different.
Learned Attorney General argued that to impose the condition
of consent in the power of transfer engrafted in Article 222
is a denial of the power itself. I do not accept this
’submission to be quite correct. It is tantamount to merely
circumscribing the power in a narrow limit and putting
restrictions upon it. If the scheme of the relevant
articles
(1) [1969] 1 A.C., 19 1.
515
of the Constitution alluded to by me above warrant such a
view, as it does, in the interest of the independence of the
Judiciary, I for one. would cast my vote in its favour as my
judicial conscience does not permit me to allow the
executive to temper with the independence of the judiciary
in this fashion. I would try to prevent it if it is
possible to do so on justifiable, valid and reasonable
grounds.
I wolud end my judgment by quoting a memorable passags from
the judgment of Lord Pearce in the case of Don John Francis
Douglas Liyanage & Ors. v. The Qeen (1) at page 291 :
"If such Acts as these were valid the judicial
power could be wholly absorbed by the
legislature and taken out of the hands of the
judges. It is appreciated that the
legislature had no such general intention. It
was beset by a grave situation and it took
grave measures to deal with it, thinking, one
must presume, that it had power to do so and
was acting rightly. But that. consideration
is irrelevant, and gives no validity to acts
which infringe the Constitution. What is done
once, if it be allowed, may be done again and
in a lesser crisis and less serious
circumstances. And thus judicial power may be
eroded. Such an erosion is contrtry to the
clear intention of the Constitution. In their
Lordships’ view the Acts were ultra wires and
invalid."
I am conscious of the fact that I am not dealing with the
vires, nor could I do so, of the provisions of the
Constitution contained in Article 222. But I have extracted
the above passage with the purposeof laying stress on the
words "what is done once, if it be allowed, maybe done
again and in a lesser crisis and less serious
circumstances".if the Constitution allows it, let it
be done. We cannot prevent it.But if such a
situation is possible to be restrained by the rules of
construction and interpretation of the various articles of
the Constitution we shall be failing in our duty if we do
not do so in the larger interest of our country and the
preservation of the democracy.
(1)[1967] 1 A.C. 259.
516