This article is authored by Mohd Atif Zakir. In this comprehensive structure of writing wherein the issue relating to transfer of judges in the High Court has been discussed in a lucid manner. This case depicts the conflict that arose against the executive decision to transfer the judge of one High Court to another. The Apex Court determined the interpretation of the provisions describing the procedure that needs to be followed before making such transfer of High Court judges. Further, this detailed article sheds light over several landmark judgments in reference to deciding the contradictional issues that have been raised.

Introduction

In Union of India vs. Sankalchand Himatlal Sheth (1977), the comprehensive ruling of the Supreme Court has been thoroughly covered and examined. In this case, the issues of judicial independence and executive control over judicial transfers were raised.

The transfer that was affected in this case against a High Court judge was brought by a Presidential order, which he claimed was issued without his consent and was done in violation of Article 222(1) of the Indian Constitution. This Article iterates that it is essential that the transfer of a High Court judge be made consensual with the prior discussion with the Chief Justice of India.

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In this writ petition, the constitutionality of several Articles and precedents had been challenged before the High Court. Furthermore, the Apex Court stated a brief meaning of consent and transfer which is drafted under Article 222 of the Constitution by the father of the Constitution of India. The Supreme Court cited several judgments, like Shamsher Singh vs. State of Punjab 1974,  while deciding the disputes between both parties. 

The case of S.P. Gupta vs. President of India 1981, also known as the “Judges transfer” case, became a topic of discussion, which provided a detailed explanation of how the Apex Court upheld the independence of judiciary over the conflict against the power of the executive bodies in order to make transfer of the Judges between High Courts. Moreover, this case determined the limitations that have been interpreted by the Apex Court when questions arose relating to the authority of the executive to transfer High Court judges.

Details of the case

  1. Case name: Union of India vs. Sankalchand Himatlal Sheth (1977)
  2. Equivalent Citations: (1977) 4 SCC 193
  3. Court: Hon’ble Supreme Court of India
  4. Bench: Justice Y.V. Chandrachud, Justice P.N. Bhagwati, Justice V.R. Krishnaiyer, Justice N.L. Untwalia, and Justice Syed Murtaza Fazalali
  5. Petitioner: Union of India
  6. Respondent: Sankalchand Himatlal Sheth
  7. Date of the judgement: September 19, 1977

Facts of the case

The government of India issued a notification through its Ministry of Law & Justice, and Corporate Affairs, Department of Justice, which indicated that “The President of India, in exercise of the powers conferred by clause (1) of Article 222 of the Constitution of India, after consulting with the Chief Justice of India, is pleased to transfer Shri Justice Sankalchand Himatlal Sheth, Judge of the High Court of Gujarat, to the High Court of Andhra Pradesh with effect from the date he assumed charge of his office.”

Justice Sankalchand accepted the transfer order and took over the charges as a judge of the Andhra Pradesh High Court, but before doing that, he filed a Writ Petition under Article 226 of the Constitution of India before the Gujarat High Court challenging the constitutionality of the notification on the ground that the transfer was made without having a consensual meeting and the opinion of the Chief Justice of India was not taken into consideration.

In the writ petition, the petitioner contended that the decision of transfer was initiated without his consent, and the consent is mandated to be taken as it is enshrined under Article 222(1). Moreover, the petitioner claimed that the transfer of a High Court judge to the Andhra Pradesh High Court without taking such consent was beyond the prescribed provision of the law.

Further, he argued that the transfer infringed the promissory estoppel made in 1963 by India’s Law Minister, A.K. Sen, that HC judges would not be transferred unless consent was given, and that the Government of India was therefore subject to promissory estoppel. Subsequently, the public interest was affected by the transfer order.

At last, the petitioner claimed that the order was issued without having a proper discussion with the Chief Justice of India as under Article 222(1) discussions required significant consultation, which did not take place in the present case, which caused the order to be null and void.

The Gujarat High Court declared the transfer order null, invalid, void and ultra vires. Subsequently, the Union of India appealed to the Supreme Court of India against the decision pronounced by the Gujarat High Court.

Issues raised in the case

  • Whether Article 222(1) of the Constitution implies the “consent” of a judge as a prerequisite before he can be transferred from one High Court to another by the President of India?
  • Whether the transfer of a High Court judge without his consent is unconstitutional?
  • Under Article 222(1) of the Constitution, what is the scope and effect of the word “transfer”?
  • What does “consultation” mean under Article 222(1)?

Arguments of the parties

Appellant

The learned Attorney-General neither denied that judicial independence should be preserved, nor did he address the issue of hardship that can be experienced usually in a transfer. Though, these arguments have been presented before the Court.

  • The appellant argued that the word ‘transfer’ in Article 222(1) is not ambiguous and says that there is no reason to read the precondition of ‘consent’ in the Article. Also, if we assume that a Judge must swear a fresh oath before assuming office at the High Court where he is transferred, it doesn’t mean he has to start again as he is being appointed as a new holder. So, you do not need to ask the Judge permission to move him from one High Court to another.
  • The appellant contended that the consultation with the Chief Justice of India is not essentially required to do. The union government’s suggestive submission may be an effective safeguard against arbitrary transfers.

Respondent

The respondent presented his arguments comprehensively on behalf of the provision mentioned under Article 222 of the Constitution of India.

  • The respondent specified that the mandate of Article 222(1), which says that the President of India must consult with the Chief Justice of India before transferring a High Court Judge, doesn’t solve the issue because further consultation with the Chief Justice of India is not the only requirement; rather, the final word always rests with the executive.
  • The oath that a Judge of the High Court has to take, as prescribed by the Third Schedule, clause VIII of the Constitution, that he will do his job “without fear or favour” will not only become meaningless, but it will also be impossible to fulfil unless it is taken out of the power of the legislature or the executive to get favour from a Judge by making him afraid of the injury that can easily be done to him by transferring him from one High Court to another.
  • Even if we need to transfer High Court judges for the betterment of national integration, it’s important for the people to have independent judges. This is integrally crucial in a country with a federal or quasi-federal Constitution, like we have in India. If a conflict of interest arises, the principle of independence should prevail over the idea of better national integration.
  • It was argued that the power conferred by Article 222(1) is, necessarily, subject to the condition that the judge proposed to be transferred must consent to his transfer. In many cases, the transfer of a judge causes him personal injury.
  • The concept of ‘transfer’ under Article 222(1) of the Constitution of India is completely different, and it must be read in accordance with the various Constitutional measures chosen to ensure judicial independence. Subsequently, a non-consensual transfer gives the executive a powerful tool to penalise the Judge who refuses to adhere to the administration’s objectives.

Laws discussed in Union of India vs. Sankal Chand Himatlal Sheth (1977)

Article 222 of the Constitution of India

The Indian President is authorised by Article 222 of the Indian Constitution to move judges between High Courts. This clause was added to make it easier to transfer judges around when it’s required for the effective functioning of Justice. As stated under Article 222, the President of India may transfer a judge after consulting with the Chief Justice of India.

Judgement of the case

Justices Murtaza, Krishnaiyer, and Chandrachud delivered the majority opinions while Justice P.N. Bhagwati and N.O. Untwalia presented their opposing views.

Majority opinion presented in this case

The primary importance of consultation was initially presented by Justice Krishnaiyer in this opinion, who also stated that the legislative terms must be interpreted in a wide and creative manner instead of with rigidity as it is being traditional. Further, he added that legislative history can be used as assistance when interpreting constitutional clauses, although it should not be studied extensively.

This comprehensive ruling emphasises that judges should interpret constitutional provisions by declaring the law as it is rather than drafting it; this is the general practice that is supposed to be followed. It represents that it is difficult to read consent into Article 222(1). It has been stated, “the word ‘consent’ in Article 222 cannot be interpreted solely on the basis of the clear and straightforward language of the Article”.

When discussing issue 1, which stated whether consent could be expressed to include into the disputed provision, it was noted that the evidence of A.K. Sen and the current convention on HC judge transfers, do not and should not fall under the purview of a constitutional provision.

Although this convention may call for the permission of the judge whose transfer is being sought, it is not constitutionally essential in order to carry out a legal transfer. The government may use Article 222’s power if the judge opposes the transfer and the public interest demands it. While referring to issue 2, Justice Krishnaiyer and Justice Murtaza, writing on their own behalf, stated that a transfer made without consent is not unconstitutional.

Article 222 of the Indian Constitution can only be used “exceptionally, in the public interest, and where it becomes expedient and necessary in the public interest.” Further, it was added that the strong public interest must be balanced with judicial  independence.

It was mentioned when discussing comparable Articles like Article 217 that the appointment of judges under Article 217(1)(c) differs from the transfer of judges under Article 222. Article 217(1)(c) does not require consent for a transfer; hence, in theory, a transferred judge does not need to take a new oath.

For issue 4, it was decided that “real, substantial and effective consultation based on full and proper materials placed before the CJI by the government” is what is meant to be understood in this context. The president has to first inform the CJI of any materials in accordance with Article 222.

Primarily, the Chief Justice of India has to collect the required information and then express his actionable advice to the President of India. The Chief Justice of India informally needs to find out whether the prospective transferee judge is going through any specific personal difficulties before he offers his opinion. Even though the government is not bound to follow the discussion made by the CJI, it is generally expected to do so since Article 222(1) forbids the government from using its authority arbitrarily or unreasonably.

Moving on to issue 1, Justice Chandrachud held that if a provision is specific and unambiguous, it is unlikely to have an alternate meaning subsequently. Therefore, it is impossible to argue that Article 222(1) requires consent. Further, it is said that interpreting the laws is the process of determining the true legislative meaning of the creators. If the language of an act is ambiguous, the ordinary meaning should be applied to reach a harmonious construction that helps in balancing conflicting interpretations of the provision.

Moreover, Justice Chandrachud addressed the claims of the respondent that the independence of the judiciary is strongly intended to be protected by several provisions in the Constitution.

Further, along with these provisions, the framers of the Constitution additionally attached Chapter VI of Part VI, under the term “Subordinate Judiciary”.

The subordinate judiciary was subject to administrative authority, which is the reason for adding this term. Justice Chandrachud stated that the essential principle of judicial independence, which develops the foundation of these rules, cannot be broken and this does not prohibit the use of the administrative power under Article 222(1) to transfer judges without their permission.

He further added that the above mentioned clauses in the Constitution protecting judicial independence will not be nullified by a transfer made without the consent of the relevant High Court judge.

Describing issue 4, Justice Chandrachud clarified that it is in the public interest to allow the authority to transfer High Court judges. Although it is stated that this authoritarian power cannot be used as a tool to punish judges, it also cannot be justified by adding wording to Article 222(1) that seeks consent before a judge can be transferred. Hence, a judge cannot suffer the disgrace of having to knock a Court to seek Justice.

It was noted that under Article 222(1), consultation with the CJI is a condition precedent; if such consultation is not carried out and transfer occurs, then the transfer is unconstitutional, even though consent may not be such a precondition. Subsequently, it was noted that judges cannot be compared to a master-servant relationship because they are constitutionally appointed rather than employees of the government. As a consequence, the government cannot decide to transfer or appoint judges on its own.

Justice Chandrachud also pointed out that Article 222(1) contains inherent limitations. Firstly, only the public interest will be served by the use of power. Secondly, the president has a duty to discuss with the CJI and review all pertinent information before presenting essentials to the CJI. At last, while submitting an opinion to the President, the CJI is required to take into account all relevant facts. At the end, the President has the option to make a decision after a thorough consultation with the CJI.

Although it is not legally binding on the President of India, the advice of the CJI should be considered, and the Court has the right to judicial review if the President decides to depart from it in his transfer decision.

Stating Issue 3, Justice Chandrachud highlighted Article 217(c), which talks about the appointments of the High Court, and emphasised that the clause distinguishes between judge transfers and appointments. As a result, Article 222(1) of the substantial provisions of the Constitution cannot be amended by a simple convention or procedure.

Minority opinion in Union of India vs. Sankal Chand Himatlal Sheth (1977)

Justice Untwalia presented a dissenting decision in which he emphasised that a transferred judge cannot be forced to leave the position of the High Court to which he was initially appointed and take a new position as a judge without his consent. While answering points 1 and 2, he therefore contradicts the majority opinion regarding the importance of consent.

Furthermore, it was also stated that maintaining the independence of the judiciary must serve the public interest. In the view of Justice Untwalia, a transferred judge cannot be forced to leave his position without his consent or unless a specific statute, rule, or procedure has been created to protect the independence of the judiciary.

Besides that, Justice Untwalia agreed with Justice Chandrachud that consent must come prior to transfer. This is not the same as the argument that a transfer that has occurred without permission is unconstitutional, the same reasoning Justice Untwalia has acknowledged.

For issue 4, it was noted that the consultation process required under the contested provision needed to be genuine and productive instead of a mere meaningless formality. As a consequence, it is mentioned that Justice Untwalia acknowledges the opinions of the CJI but also emphasises that the government is not bound by them. This reference was made in regard to the case-law of Chandramouleshwara Prasad vs. Patna High Court (1970).

While Considering the interpretation of Article 222(1), Justice Bhagwati said on issue 1, that the legislative expertise plays a crucial role in interpreting statutory or Constitutional provisions. Further, he cited Heydon’s rule in which it is stated that when interpreting a statute, one must consider its Preamble, other statutes that are in “pari materia,”  a doctrine that elaborates on the matter and situation of cases that are identical in nature and the legislature’s intention regarding the problem that the statute was intended to address.

While answering the third point, Justice Bhagwati supported interpreting the term “transfer” in Article 222(1) severely for two reasons. First, as stated in Article 222(2) of the aforesaid reimbursement allowance, in recognition of the personal harm imposed upon judges. Second, the judge’s career would suffer and his practice in HCs would be restricted due to the affliction of frequent transfers. Therefore, he believed that a transfer could only be legitimate if it was carried out in the public interest.

Otherwise, using transfer as a form of punishment turns it into an obvious misuse of power if it is not done for the public good. This would be extremely risky if the President, acting with the assistance and advice of the Council of Ministers, decided to use the authority conferred by Article 222(1) without the judge’s consent.

Considering issues 1 and 2, it was observed that while the word “transfer” is neutral and can indicate both forced and voluntary transfer, the word “consent” is absent from the clause in Article 222(1). Because of this, it should only be interpreted in the specific context of a consenting transfer because judicial independence is supported by directive principles and Constitutional rules.

Concerning the public interest as a justification for transfer, it was noted that the public interest justified the transfer of a judge in relatively few instances. In general, judicial independence will be compromised if transfers are made without consent. As stated in Shamsher Singh vs. State of Punjab, (1974), the public interest in the transfer of an adverse judge must be evaluated against the ideals of the judiciary’s independence and impartiality.

In the purview of the precise interpretation of Article 222(1), the presidential authority is not compatible with making such transfers without having a prior consultation with the Chief Justice of India.

Analysis of the case

This case, Union of India vs. Sankalchand Himatlal Sheth, signifies an overview discussing the power of the executive in order to make transfers of judges solely by releasing a notification. This authority to transfer a High Court judge is granted by the Constitution in the public interest, not to provide the executive with a weapon to punish a judge who does not conform to a rule or standard or has fallen out of favour for whatever reason.

The Apex Court recognised the challenges in proving that a High Court judge’s transfer in a particular case was made for an arbitrary reason, but our Constitution gives the executive no such authority. In such a case, the exercise of authority can be rightfully deemed affected by legal mala fides.

The power to transfer a High Court judge was given to safeguard the High Court judicial system against the influence of the executive. Thus, the independence of the judiciary shall be maintained and the administrative potential will not be able to take over the function of the judicial system as it is the basic foundation enshrined under the Constitution of India.

According to the Supreme Court, any provision that allows the president to transfer a judge from one High Court to another cannot be seen as diminishing the judiciary’s independence. There have been certain restrictions that are imposed while considering the transfer of the judges of the High Court.

The deficiency of a provision for transferring a High Court judge in the Government of India Act, 1935 and the original draft of the Constitution demonstrate that the founding architecture of the Constitution did not intend to limit judicial transfers to their consent. As a result, Article 222(1) of the Constitution includes an unambiguous provision for judicial transfers.

A comparative analysis of the scenario before and after the judgement

The essence of the power of the President and the executive to transfer judges between High Courts without the consent of the concerned Judge, was ambiguous prior to the historic case of Union of India vs. Sankalchand Himatlal Sheth (1977). On one hand, some legal experts maintained that the President had extensive power, while others contended that consent was necessary for the transfer of Judges in order to preserve judicial independence.

This case firmly gives clarification on this issue by interpreting that the power of the President to transfer judges was limited and mutual consent was necessary to safeguard the fundamental elements of the Constitution. As a result, after 1977, the transfer procedure underwent significant modification. On the basis of executive authority alone, judges could no longer be arbitrarily transferred between High Courts. Rather, transfers have to protect the public interest and safeguard the judiciary from outside influence in order to comply with judicial independence regulations.

The transfer procedure became more transparent and consultative as the rules changed over time. The stated point of the Chief Justice of India was becoming increasingly significant when it came to assessing transfer proposals. Till the 1990s, the executive was no longer operating in isolation; instead, panels of most senior judges recommended transfers under the prescribed collegium system.

The Sankalchand case’s emphasis on judicial independence and the case of S.P. Gupta vs. Union of India 1981, which emphasised the need for transparency in judicial appointments and transfers, had a significant influence on the move from a more arbitrary practice to a collaborative system. Even though the President still officially allows transfers, they are now carried out according to established protocols that require approval from the judiciary.

Historical importance of judicial transfers in India

Prior to the case of Union of India vs. Sankalchand Himatlal Sheth, the executive branch of India had substantial power over the transfers of High Court judges under Article 222 of the Constitution of India. Since judges of the High Court could be transferred on their consent by the President of India, there was no such specified limitation for exercising this power.

After independence, the executive body repeatedly transferred High Court judges around for decades. This frequent practice provided the potential for the ruling government to create an impact on significant cases and the judiciary. However, at that point in time, judges had limited options for challenging these transfers.

In accordance with one of the academicians, B.D. Dua, conflicts between the executive and judiciary concerning the transfer of Judges rose in the 1970s, just a couple of years prior to the existence of the Sankalchand case. The case evolved from the increment of the resistance of the judiciary to the part of the executive’s disproportionate powers concerning transfers. At the end, it resulted in a historic Supreme Court ruling that set out the restrictions on the use of Article 222.

Significance of Union of India vs. Sankal Chand Himatlal Sheth (1977)

Union of India vs. Sankalchand Himatlal Sheth had a significant impact on judicial appointments and transfers in India. Before the decision came into existence, Article 222 of the Constitution provided the executive body with literally complete power over the appointment of judges between High Courts. Although the ruling in this case set a limit to make sure the power of the executive to appoint judges was not to be used arbitrarily, it further upheld the independence of the judiciary.

As a consequence, the ruling established strict policies and restrictions on the frequent transfer of High Court Judges. Further, it also drafted rules and regulations so that judges could not be transferred for administrative easement solely nor could they be transferred arbitrarily or without the consent of judges. Consequently, the decision ensured that arbitrary transfers without any justification would only compromise the ability of the judiciary to function without any fear or pressure.

After this case, the power of the judiciary regarding appointments and transfers has been uplifted over the years. After the establishment of rulings such as Supreme Court Advocates-on-Record Assn. vs. Union of India (1993), which helped in developing the collegium system for appointments of higher judges, the Apex Court expanded the range of its jurisdiction. After that, the role of the judiciary in the selection process of judges was incrementally developed. 

After this judgement, the transfer of High Court judges could only take place by asking for their consent, subject to exceptional circumstances indicating specific allegations of misconduct or unprofessional happenings. The Apex Court clearly emphasised that the transfers occurring without consent needed solid grounds related to the public interest. Subsequently, the central government’s discretion decreased substantially, and ultimately, judicial transfers became more transparent and reasonable in their process.

To ensure a balanced judicial independence, this case has evolved more intense procedures for the transfer of High Court judges. It embarked on an immense impact on appointment procedure by seeking the written assent of the judge, which could only be granted in very exceptional cases. The decision was highly appreciative of maintaining constitutional safeguards and protecting the courts from any executive interference. The impacts of this ruling on judicial transfer remain relevant even today.

Conclusion

The influence created in Union of India vs. Sankalchand Himatlal Sheth is still notable today since it established essential guidelines for the harmonious independence of the judiciary in India. The ruling observed judicial independence from governmental overreach by upholding the rule that High Court judges cannot be transferred without their consent.

This ruling established a precedent, which is notable for maintaining the separation of powers where the president cannot transfer judges arbitrarily. This ruling keeps the Court unbiased and prevents it from getting politically charged. The discussions concerning judicial transfers and executive power over the courts reference the teachings of the case of Sankalchand Himatlal Sheth at present.

This case has also emphasised how Article 222 of the Indian Constitution, governing judicial transfers, is recognised. Further, It strengthened judicial independence by establishing consent as a necessary element. Because of this precedent, the President of India cannot make unilateral transfers; it contributed to protecting the independence of the judiciary.

After several decades, the case of Sankalchand Himatlal Sheth is still regarded as a pioneering case defending judicial independence from administrative overreach. The prominent principles established by this case are still applied to preserve the integrity and separation of powers inside the courts. This case, after all, established consent as a crucial component and influenced the handling of judicial transfers. The neutrality and equity of India’s legal system are nevertheless upheld by preventing arbitrary transfers.

Frequently Asked Questions (FAQs)

What is written under the Constitution of India regarding the transfer of High Court Judges?

  • Article 222 of the Constitution, judges of High Courts, including the Chief Justice, may be transferred from one High Court to another by the President, subject to consultation with the Chief Justice of India. 
  • It also specifies that the transferred judge shall receive a compensatory allowance. 
  • It indicates that the Chief Justice of India must be consulted before any judge may be transferred by the executive branch. 
  • Periodically, recommendations prescribed that judges from other States should make up one-third of the participation of each High Court.

What makes the transfer of judges controversial?

  • When people believe that a judge’s transfer from one High Court to another was made with malicious intent, transfer orders become controversial.
  • In most cases, neither the government nor the Supreme Court will reveal the purpose of a transfer. 
  • If the rationale is based on an adverse judgement of a judge’s performance, then revelation would affect the judge’s independence and performance in the Court he is transferred to.
  • However, when a cause is not stated, speculation may arise as to whether the decision was made in response to complaints made against the judge or as a form of punishment for specific rulings that caused the executive branch difficulties.

Who administers the oath to a judge of a High Court?

The Governor of the concerned state administers the oath to the judge in the High Court. And the President of India appoints the judges of the High Court after consultation with the Chief Justice of India. Further, the Council of Ministers and the Apex Court are majorly responsible for matters pertaining to appointments to the judiciary. 

It is stated in Article 219 of the Constitution of India that every individual appointed to be a judge of a High Court is required to pledge before the Governor of the state or the person authorised by the Governor. The oath and affirmation procedure is described in the third schedule of the Constitution of India.

What is the meaning of consent under Article 222 of the Constitution of India?

According to this Article, when a judge is being transferred from one High Court to another, he must be informed about this and a prior discussion must be done formally before making the transfer. The executive does not have absolute authority when it comes to transferring a High Court judge. However, the consent of the judge does not bind the executive to do so. If there is a reason in the public interest to maintain the fair functioning of the judiciary, the executive may transfer after having a proper consultation with the Chief Justice of India.

What is meant by the collegium system?

The Chief Justice of India and the four senior Supreme Court judges act on the collegium system, a body that makes recommendations about judicial appointments and transfers. Only the collegium system may be used to appoint judges to the higher judiciary, and the government cannot act until the collegium has chosen judges.

References

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