Case Analysis: Union of India V. Sankalchand Himatlal Sheth (1977) | Judicial Appointment and Transfer

The present article, “Case Analysis: Union of India v. Sankalchand Himatlal Sheth [(1977) 4 SCC 193]”, will discuss the judgment delivered by the Supreme Court in the 1977 case and analyse the same.

The issues of judicial independence and executive control over judicial transfers came up in the decision of Union of India v. Sankalchand Himatlal Sheth [(1977) 4 SCC 193] which was delivered in 1977. The cause of action here was a transfer affected against a High Court judge by way of a Presidential order which, according to him, was passed without his consent and in violation of Article 222(1) of the Indian Constitution. In response to his transfer from the High Court of Gujarat to the High Court of Andhra Pradesh, the respondent judge filed a writ petition in Gujarat High Court, which was appealed up to the Supreme Court.

Introduction

What is the significance of this case?

Article 222 of the Constitution deals with the transfer of judges of the High Court, and Article 222(1) reads as follows:

“The President may, after consultation with the Chief Justice of India, transfer a Judge from one High Court to any other High Court.”[1] [emphasis provided by the author]

Thus, the President may transfer a judge after consultation with the Chief Justice of India (‘CJI’). The interpretation of the term consultation was the main issue in the Union of India v. Sankalchand Himatlal Sheth[2] (‘1977 decision’). It was held that when effectuating transfers of High Court (‘HC’) judges, the term ‘consultation’ cannot mean ‘concurrence’ in that the CJI’s opinion was not binding upon the executive. Although the executive could depart from the CJI’s opinion, it must be in exceptional situations and thus could be judicially reviewed as well.[3] The 1977 case was the first documented decision to illustrate “…the simmering animosity between the Executive and the Judiciary’s fight for its independence and composition.”[4]

Interestingly, the decision ended with a consent decree because the two sides came to an understanding, and the petition filed by the appellant was withdrawn with the leave of the court. The settlement was 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.”[5]

Has this decision been overturned?

Yes, this position has been overturned. In the 1977 case, it was held that consultation with the CJI was a part of the constitutional process prescribed for the valid transfer of a High Court judge.[6] This position in the 1977 case was reversed in the subsequent case relating to judicial transfers and appointments, which was SP Gupta v. Union of India,^[7] also known as the First Judges Case. Herein, the Supreme Court (‘SC’) held that the President had the power to disregard the CJI’s opinion on a matter of transfer and also noted that ‘consultation’ does not mean concurrence.[8]

How were judicial transfers carried out in independent India?

Before mentioning the context of the 1977 case, it is important to briefly discuss the general trend of judicial transfers in post-Independent India. According to Austin, judicial transfers were looked upon as a means of ‘executive retribution’ for substantially ruling against the government.[9] When Prime Minister Nehru was in power, the three branches of government addressed the propriety of transfers made by the executive or the judiciary and developed policies in regard to each.[10]

While the issue was not resolved, it was contained until the 1970s, when judicial transfers became highly politicized.[11] In themselves, the transfers during the Nehru years did not have great constitutional significance. In the 1960s, transfers among the states' high courts were subject to the convention[12] that no judge should be transferred without his consent, coupled with constitutional protections such as Article 222.

Austin notes that P. B. Gajendragadkar, the CJI who held office between 1964 and 1966, was willing to cooperate with transfers if the judge in question consented and if the transfer helped national integration without causing damage to an independent judiciary.[13] However, CJI Gajendragadkar was also of the opinion that several transfers the government considered were “ethically improper and… would materially affect the independence of the judiciary.”[14]

The “highly politicized and notorious transfers” took place during 1975-77 period of internal emergency because they were perceived to be ‘calculated attacks' on judicial independence.[15]

The 1977 case took place in the same timeline as the internal emergency announced by the then Prime Minister, Indira Gandhi (‘PM Gandhi’) in 1975-1977, as mentioned above. Thus, PM Gandhi and her minister advised the president to transfer certain HC judges as “retribution” for ruling in cases against the Central Government.[16] However, the respondent judge in this 1977 case, Sheth, J. decided to challenge his order of transfer when he was ordered to be transferred to the HC of Andhra Pradesh.

Background

The main question, in this case, was the constitutionality of an order issued by the President dated 27^th May 1976 transferring an HC judge by the name of Sankalchand Himatlal Sheth from Gujarat High Court to Andhra Pradesh HC, in the exercise of his powers under Article 222(1) of the Constitution. The order stated that the President of India, after consultation with the CJI, directed that the respondent be transferred to the HC of Andhra Pradesh and that he should comply with the notification within 4 weeks from the date of issue.

The respondent complied with the notification, but before joining the HC of Andhra Pradesh, he preferred a writ petition in the Gujarat HC, challenging the constitutional validity of the notification of transfer. It may be mentioned that the Central Government had transferred as many as 16 judges from one HC to another during the time of emergency in 1976.

According to this writ petition, the respondent argued that the order was passed without his consent, which was an implied consent contained within the scope of Article 222(1), and thus the transfer of a judge to the High Court of Andhra Pradesh without this consent was ultra vires. Secondly, he contended that the Government of India was bound by promissory estoppel as the transfer was in breach of the assurance provided by the Law Minister of India, A.K. Sen, in 1963 [17] that HC judges would not be transferred except by consent. Thirdly, the order of transfer was opposed to the public interest.

Finally, the respondent argued that the order was passed without effective consultation with the CJI and that consultation under Article 222(1) referred to effective consultation and as it was not effectuated in this case, the order was nullity.

A special bench heard this writ petition of three judges, and it was observed that a judge of an HC could not be transferred without his consent and that effective consultation was a condition precedent to the exercise of power under Article 222(1). Since the evidence did not show that effective consultation had occurred in the present case, the Special Bench ruled that the transfer order was held to be bad in law and therefore struck down the transfer order as invalid while allowing the petition. Aggrieved by this order, the appellant, in this case, preferred an appeal against the order of the Special Bench to the Supreme Court.

Issues

1. Whether Article 222(1) of the Constitution implies “consent” of a judge as a condition precedent before he can be transferred by the President of India from one High Court to another?
2. Whether the transfer without his consent is unconstitutional?
3. What is the scope and effect of the word “transfer” occurring in Article 222(1) of the Constitution?
4. What does ‘consultation’ entail in Article 222(1)?

Arguments

Respondent

• Executive has the final word under Article 222(1)

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.

• Oath argument

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 fufill unless it was placed out of the power of the legislature or the executive to secure favour 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.

• Independence of judiciary being a function of public interest

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.

• Article 222 (1) means consensual transfer and not compulsive transfer

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 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. It would be then be an 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 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.

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.

• No master-servant relationship: the non-consensual transfer is a potent weapon

It was argued that pressure on the judiciary to decide a case a certain way would establish a power dynamic between the judiciary and the executive that would be detrimental to judicial independence. Thus, it is of the essence of judicial service that there is no master-and-servant relationship between a Judge and the Government. Therefore, it was argued that “transfer” in article 222(1) does not have the same 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. Ultimately, a non-consensual transfer will provide the executive With a potent weapon to punish the Judge who does not heed the executive’s pressure to confirm with its interests.

• Meaning of transfer gets a doubtful import

As in the previous point, it was argued that the term ‘transfer’ becomes a word of doubtful import in the constitutional scheme. This is because 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. The narrow interpretation will reduce Article 222(1) to dead letter because, as a matter of fact, nearly 25 Judges were transferred with their consent since the inception of the Constitution.

The counsel invoked the mass transfer for the respondent and it was thus argued that, when every safeguard of liberty had gone, that mass transfer of High Court Judges were resorted to by the executive on grounds unconnected with the requirements of public interest.

Appellant

The learned Attorney-General did not actually dispute that judicial independence is not to be preserved or mention the question of hardship which a transfer ordinarily entails. However, the following arguments were forwarded.

• Meaning of transfer is not ambiguous.

In response to the argument of the respondent, the appellant contends that the word ‘transfer which occurs in article 222(1) is not an expression of ambiguous import, that there is no justification for reading the precondition of ‘consent’ in article. Moreover, 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’ itself 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.

• Consent is not necessary

There was not much discussion from the appellant on the question of consultation with the Chief Justice of India. The takeaway from the Union’s submission is that consultation with the Chief Justice can be an adequate safeguard against arbitrary transfers.

Judgment And Analysis

The majority opinion was rendered by Justices Chandrachud, Krishna Iyer and Murtaza. P.N. Bhagwati and N.O. Untwalia JJ had dissenting opinions.

Majority Opinion

Krishnaiyer J. (for himself and Murtaza, J.)

In this opinion, Krishnaiyer J. first deliberates upon the meaning of consultation and notes that the statutory interpretation of legislative clauses must be broad and creative and not traditionally blinkered. Moreover, when interpreting constitutional provisions, one can rely on legislative history but not delve into such.

According to the opinion, the rule of thumb is that during the interpretation of constitutional provisions, it is important for judges to declare the law as it is and not make it. This means that consent cannot be readily read into Article 222(1). In his words, “It is not possible to read the word “consent” in Art. 222 on the construction of the plain and unambiguous language of the Article.”

Discussing issue 1 and whether consent may be read into the impugned provision, it was observed that an existing convention on transfers of HC judges (i.e. A.K. Sen’s testimony) is not and cannot form the scope of a constitutional provision.

While consent of the judge who is proposed to be transferred may be part of this convention, it is not constitutionally required for a valid transfer to be effectuated. If the judge does not consent to the transfer and public interest compels, then the executive can exercise power under Article 222. Thus, as for issue 2, Krishnaiyer J. writing for himself and Murtaza J. note that transfer without consent is not unconstitutional.

The circumstances within which Article 222 can be exercised “only exceptionally and in the public interest and where it becomes expedient and necessary in public interest.” Further, the independence of the judiciary to be balanced with the compelling public interest.

When speaking of comparative provisions such as Article 217, it was noted that the Appointment of judges under Article 217(1)(c) is not the same as the transfer of judges under Article 222. Strictly speaking, fresh oath for a transferred judge is not required, but Article 217(1)(c) does not require consent for a transfer.

Moving to issue 4, it was held that consultation in this context constitutes “real, substantial and effective consultation based on full and proper materials placed before the CJI by the government.” The procedure under Article 222 is first for the president to communicate to the CJI all the materials.

The CJI, in turn, must collect necessary information and then give the president such counsel of action. Before CJI gives his opinion, he must informally ascertain if the proposed transferer judge has any real personal difficulty. While the opinion of the CJI is not binding on the government, it is entitled to great weight and is normally to be accepted by the government because power under Article 222(1) is not to be exercised whimsically or arbitrarily.

• Chandrachud J.

According to Chandrachud J., as far as issue 1 was considered, if a provision was clear and explicit, it could not be reduced to a nullity by reading into a meaning not originally carried by it. Thus, consent could not be said to be implied in Article 222(1). Discovering the true legislative intent of the makers of a statute is the work of interpretation of statutes and in his opinion, if words of a statute are unclear, then the ordinary meaning to be utilised in such that a harmonious construction be arrived at as far as competing meanings of a provision are concerned.

Chandrachud J., also responds to the respondent’s arguments that the independence of the judiciary has been safeguarded by various constitutional provisions. In addition to these protections, the framers of the Constitution also included Chapter VI of Part VI of the Constitution under the heading ‘Subordinate Judiciary’.

This was done to keep administrative control over the subordinate judiciary. Chandrachud J. noted that the fundamental principle of judicial independence upon which these provisions are based could not be violated. However, this does not mean a judge cannot be transferred without consent using the executive power under Art. 222(1).

Moreover, a transfer without the consent of the HC judge in question will not destroy the aforementioned provisions in the Constitution, preserving judicial independence. Thus in response to issue 4, Chandrachud J. clearly states that the power to transfer HC judges is conferred by public interest, and while it cannot be used as a weapon to punish a judge, hardship to a judge such as the indignity of moving court for justice cannot also justify the addition of words to Art. 222(1) to make consent a pre-condition for transfer.

While consent may not be such a pre-condition, it was observed that under Art. 222(1), consultation with the CJI is a condition precedent, and if such consultation is not done and transfer occurs, then the transfer is unconstitutional. Finally, it was observed that judges are not government servants but constitutionally appointed, so there is no comparison with the master-servant relationship. Thus, a unilateral decision by the government to transfer and appoint of judges cannot be taken.

Chandrachud J. also notes that there are built-in safeguards in Art. 222(1). First, the power must be exercised in the public interest only. Second, there is a presidential obligation to consult the CJI and all relevant facts of material to be placed before the CJI. Third, the CJI has the duty to consider every relevant fact before tendering opinion before the President. After effective consultation with the CJI, it is open to the President to decide.

The CJI’s opinion should be accepted, and the court is entitled to judicial review if the President departs from the opinion in his decision of transfer. However, it is not binding on the President as well. Thus, there is no real place for the judge to complain of arbitrariness in this deliberative process. Chandrachud J. also observes that whether it’s necessary to transfer judges in public interest in national integration is a policy matter and not the judiciary's concern.

As for Issue 3, Chandrachud J. referred to Article 217(c), which deals with appointments of the High Court and observed that the provision makes a difference between appointments and transfer of judges. Thus, a mere convention or procedure cannot affect the substantive provisions of the Constitution in Article 222(1).

Minority Opinion

• Untwalia, J.

Writing a dissenting opinion, according to Untwalia, J, a transferred judge cannot be compelled to vacate his office of judge of the HC to which he was initially appointed and assume office as a judge of another HC without his consent. Thus as for issues 1 and 2, he departs from the majority about the necessity of consent.

It was also opined that public interest also demands non-interference with the independence of the judiciary. A transferred judge cannot be compelled to vacate his office without consent unless a special law or procedure has been made or prescribed guarding against any attack on the independence of the judiciary, according to Untwalia, J.

Untwalia, J. concurred with Chandrachud J., that consent must be a condition precedent before transfer. This is distinct from the contention that a transfer that has been effectuated without consent is unconstitutional- a matter which Untwalia, J. has agreed with.

Touching on issue 4, it was observed that consultation under the impugned provision must not be an empty formality but must be real and effective. Finally, it is noted that by Untwalia, J., the views of the CJI are be accepted but, again, are not binding upon the government. The case law of Chandramouleshwar Prasad v. Patna High Court, [1970] 2 S.C.R. 666, was cited with approval here.

• Bhagwati, J.

Dealing with the interpretation of Article 222(1) in issue 1, it was observed by Bhagwati, J. that in the interpretation of statutory or constitutional provisions, it is the context of legislation that is most important. Relying on Heydon’s rule, Bhagwati, J. noted that in interpretation, one must rely on the preamble of the statute, other statutes which are in pari materia and understanding the intention of the legislature in the mischief that was sought to be remedied through the promulgation of the statute in question.

As for issue 3, Bhagwati J. favoured a narrow reading of the word “transfer” in Article 222(1) to be taken for two reasons. First, in acknowledgement of the personal injuries inflicted on judges, which is indicated in Article 222(2) in the compensatory allowance mentioned. Second, the bane of repeated transfers limits HCs for the judge to practice in and would hurt his career. Thus, he believes transfer was only valid when effectuated in the public interest.

Otherwise, if not done in the public interest, the use of transfer becomes a gross abuse of power if doled out as a punishment. If the power under Article 222(1) is to be exercised by the executive, that is President acting on aid and advice of the council of ministers, and transfer is done without the judge’s consent, then this would be a highly dangerous power.

Regarding issues 1 and 2, it was noted that the word “consent” is not present in the provision of Art. 222(1), but the word “transfer” is a neutral word and could imply consensual or compulsory transfer both. Thus, it should be read down in the limited sense of consensual transfer because the constitutional provisions and directive principles are in favour of securing judicial independence.

Moving to the issue of public interest as a reason for transfer, it was observed that it was in very few cases that the public interest required the transfer of a judge. Generally, transfer without consent will impinge on judicial independence. Although a transfer of an undesirable judge is securing public interest, this must be balanced against the principles of impartiality and independence of the judiciary, as mentioned in Shamsher Singh v. State of Punjab, A.I.R. 1974 SC 2192.

Thus, with the plain meaning and reading of Art. 222(1), there is a limitation of the president's executive power to transfer without previous consultation with CJI.

Conclusion

Thus, in this case, it was held that the word ‘consultation’ means full and effective consultation. The President, however, has a right to differ from them and take a contrary view. Consultation does not mean concurrence, and the President is not bound by it.

The tussle between judicial and executive branches have continued since independent India, and the following extract from Austin is an appropriate ending note on this:

“K. Santhanam went to the heart of judicial independence issues when he wrote that true independence would be achieved ‘only through the growth of traditions… in which they [judicial officers] will refuse to be influenced by external factors… [and the executive] will consider it altogether wrong to interfere with the independence of the judiciary.”[18]

---

^[1] Article 222(1), Indian Constitution, 1950.

^[2] [(1977) 4 SCC 193].

^[3] S. Parthasarathy, Collegium and Transparency, (01/11/2017), The Hindu, Available here

[4] S. Khanna, Judicial Appointments in India: A Quest for Democratic Legitimacy, Vol. 6, 2018, Supremo Amicus, Available here

[5] Supra, at note 2.

^[6] Supra, at note 3.

^[7] 1981 Supp (1) SCC 87.

^[8] Ibid.

[9] G. Austin, Working a Democratic Constitution: A History of the Indian Experience, 16^th ed., 2016.

[10] Supra, at note 9.

[11] Ibid.

[12] Law Minister, A.K. Sen, in testimony to the Parliamentary Joint Committee on the Constitution (Fifteenth Amendment) Bill, 1962.

[13] Letter to G.L. Nanda, dated 12 February, 1964, P. B. Gajendragadkar Papers, NMML.

[14] Letter to G.L. Nanda, dated 12 February, 1964, P. B. Gajendragadkar Papers, NMML.

[15] G. Austin, Working a Democratic Constitution: A History of the Indian Experience, 16^th ed., 2016.

[16] Supra, at note 3.

[17] Law Minister, A.K. Sen, in testimony to the Parliamentary Joint Committee on the Constitution (Fifteenth Amendment) Bill, 1962.

[18] G. Austin, Working a Democratic Constitution: A History of the Indian Experience, 16^th ed., 2016.

---

1. Law Library: Notes and Study Material for LLB, LLM, Judiciary and Entrance Exams
2. Legal Bites Academy – Ultimate Test Prep Destination