# UNION OF INDIA v. SANKAL CHAND HIMATLAL SHETH AND ANR

- **Citation:** [1978] 1 S.C.R. 423
- **Court:** Supreme Court of India
- **Decided:** 1977-09-19
- **Case number:** Writ Petition No. 911 of 1977
- **Bench:** Y. V. Chandrachud, P. N. Bhagwati, V. R. Krishna Iyer, N. L. Untwalia, S. Murtaza Fazal Ali
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/union-of-india-v-sankal-chand-himatlal-sheth-and-anr-7287
- **Pages:** 93

## Headnote

Practice and Procedure-When there has been a challenge to the
constitullonality of an Act, compending, of the /is 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
constructio11Must he excunined in its context and in the sense which the legislature has· in
view.
).-
Interpretation of statutes-Interpretation of a constitutional code-Legislatire
flistory plus-Value of and consultation by Courts.
A
B
c
Constitution of India, 1950, Art. 222(1)-lnterpretation of Art. 222(1)-
Whether it i1nplies "consent" of a judge before he can be transfen'ed by
the
D
President of India froni one High Court to another-Wl1et'1er the transfer
·without his consent unconstitutional.
Constitution of India, 1950, Art. 222(1)-Transfer of judge fro111 one High
Court to another by the President of India--Con.'lent and basic material and
minimum requirements for consultation.
Constitution of India, 1950, Arts. 50, 217(1) and 222(1)-Scope and e[Ject
E
of_ the word "transfer'' occurring in the said Article.
Constitution of India, 1950, Article 222(1)-Whether the transfer of a High
Court Judge fro1n one High Court to another without his consent is in violation
of the principles of natuial justice.
Bias, doctrine of-Objection by tlie Union of India to tile hearing, by
a special Bench, of the Writ Petition by High Court Judge against the order of
his transfer to another Higli Court-Propriety of the objections.
F
On May 27, 1976, the President of India issued a notification to lhe effect
"'In exercise of the powers conferred by clause (i) of article 222 of the Cons~
titution 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 La\v, Justice and
Company Affairs,
Department of Justice. Mr. Justice Sheth complied with the order of transfer
G
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;
H
2. The order was passed in breach of the
assurance
given
on
behalf of the Government of India by the then Law Minister
A
B
c
D
E
F
G
H
424
SUPREME COURT REPORTS
[1978] I S.C.R.
Shri A. K. Sen, while mQving 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 Governrnent of India was bound by
that assurance on the doctrine of promissory estoppel.
3. The order of transf1:!r mitigated against public interest the po\ver
conferred by Art. 222( 1) was conditioned
by
existence
and
requirement of public interest and since the imDugned transfer
was not shown to have been made in public interest, it was ultra
vires. and
4. The order \Vas passed without effective consultation with the
Chief Justice of India.
'Consultation' under article
222(1)
means 'effective consultation' and since the
pre-condition. of
article 222(1) that no transfer can be made without such consultation, was not fulfilied, the order was bad and of no effect.
The Writ Petition was heard by a special Bench

## Text

_Characters 0–39,828 of 309,556. This is a partial read: ask again with offset=39828 for what follows._

423
UNION OF INDIA
v.
SANKAL CHAND HIMATLAL SHETH AND ANR.
September 19, 1977
[Y. V. CHANDRACHUD, P. N. BHAGWATI, V. R. KRISHNA IYER, N. L.
UNTWALIA AND S. MURTAZA FAZAL ALI, JJ.J
Practice and Procedure-When there has been a challenge to the
constitullonality of an Act, compending, of the /is 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
constructio11Must he excunined in its context and in the sense which the legislature has· in
view.
).-
Interpretation of statutes-Interpretation of a constitutional code-Legislatire
flistory plus-Value of and consultation by Courts.
A
B
c
Constitution of India, 1950, Art. 222(1)-lnterpretation of Art. 222(1)-
Whether it i1nplies "consent" of a judge before he can be transfen'ed by
the
D
President of India froni one High Court to another-Wl1et'1er the transfer
·without his consent unconstitutional.
Constitution of India, 1950, Art. 222(1)-Transfer of judge fro111 one High
Court to another by the President of India--Con.'lent and basic material and
minimum requirements for consultation.
Constitution of India, 1950, Arts. 50, 217(1) and 222(1)-Scope and e[Ject
E
of_ the word "transfer'' occurring in the said Article.
Constitution of India, 1950, Article 222(1)-Whether the transfer of a High
Court Judge fro1n one High Court to another without his consent is in violation
of the principles of natuial justice.
Bias, doctrine of-Objection by tlie Union of India to tile hearing, by
a special Bench, of the Writ Petition by High Court Judge against the order of
his transfer to another Higli Court-Propriety of the objections.
F
On May 27, 1976, the President of India issued a notification to lhe effect
"'In exercise of the powers conferred by clause (i) of article 222 of the Cons~
titution 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 La\v, Justice and
Company Affairs,
Department of Justice. Mr. Justice Sheth complied with the order of transfer
G
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;
H
2. The order was passed in breach of the
assurance
given
on
behalf of the Government of India by the then Law Minister
A
B
c
D
E
F
G
H
424
SUPREME COURT REPORTS
[1978] I S.C.R.
Shri A. K. Sen, while mQving 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 Governrnent of India was bound by
that assurance on the doctrine of promissory estoppel.
3. The order of transf1:!r mitigated against public interest the po\ver
conferred by Art. 222( 1) was conditioned
by
existence
and
requirement of public interest and since the imDugned transfer
was not shown to have been made in public interest, it was ultra
vires. and
4. The order \Vas passed without effective consultation with the
Chief Justice of India.
'Consultation' under article
222(1)
means 'effective consultation' and since the
pre-condition. of
article 222(1) that no transfer can be made without such consultation, was not fulfilied, 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 ground of
promissory estoppel.
As regards the ground of consent 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.
As to the ground of consultation with the Chief Justice of India, they unanimously held that there was
no effective consultation with the Chief Justice of India, though they arrived at
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 estoppel 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 irnplication, subject to the precondition that the Judge, who is proposed to be transferred mus): 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 gainful1y employed,
she may be required to give up the employment; the education
of his children mav suffer; and above all, the lransfer of a permanent Judge disables him from practising not only
in
the
High Court to which he was initially appointed but
in
tbe
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
judiciarv because, human nature being what it is. a large number of Judges would, consciously or unconsciously, be induced
to fall in line with the \Vishes 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
) -
UNION V. S. H. SHETH
425
order to ensure that those judges are immune from the exercise
A
(3)
(4)
of impropet 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.
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 formality,
the
final word, in practice. always rests with the executive.
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 tht: independt:nce of lht: judiciary of their conlent 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 ot 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 po\ver of
the legislature or the executive to secure favours 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.
B
c
D
(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 highe:st
E
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)
F
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 v.·ords,
"transfer", within the meaning of article
222(1)
means
a
consensual, not a compulsive shifting of a Judge
from
one
High Court to another.
(~) It is of the ·essence of judicial service that there is no masterand-scrvant 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 Couft, generally,
only corrects the Judge of the lower court-It does not con1mand him. Therefore, "transfer" in article 222 ( 1) does nut
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
H
the executive with a potent v:eapon to punish the Judge who
does not toe its line and thereby destroy the independence of
the judiciary.
A
B
D
E
426
(9)
(10)
SUPREME COURT REPORTS
[1978] 1 S.C.R.
Of Ilo 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 \l.1ord of doubtful import. If a vital constitutional
principle is going to be violated by putting a \Vide:r c0nstruction on that expression, it must receive a narro\v, restricted
meaning; and lastly.
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, \Vhen every safeguard of liberty had
gone, that mass transfers of High Court Judges were resorted
to by the executive on grounds unconnected \Vith the requiren1ents tif public interest.
The appe11ant union did not dispute that the greatest care ought to be tab.en
to preserve the independence of the
judiciary
which
the
constitution
so
copiously protects.
The appellant, however,
contended : (i)
that the won.l
"transfer" which occurs in Art. 222 ( 1) is not aB. 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. inYolve a fresh
appointment and as such th1! consent of the judge to his transfer from
one
lligh Court to another is no! 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
th\!
teamed Attorney~General Mr. Seerva_i, counsel for Respondent No. 1
(Justice S. H. Sheth) v.lithdraws the \Vrit Petition with leave of the
Court".
Disposing the appeal by certificate in terms of that settlement, the Court :
HELD:
F
Per n1ajority (P. N. Bhagwati and N. L. Untwalia, JJ, contra)
G
H
1. There is no need or justification in order to uphold
and
protect the
independence of the judiciary for constn1ing Art. 222(1) to mean
that
a
Jud~e cannot be transferred from one High Court to
another
without
his
l..
consent.
The power to transfer a High Court Judge is conferred by the COil<\-
titution in public interest and can be exercised in public interest 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 tbe actual tranifer
of the Judge.
Consultation \Vithin the meaning of Art. 222(1) mfan5 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 Legislator5
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 inte1·-
pretation 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
thi> words of an instrument are ambiguous in the sense that they can reasonably
) ..
UNION V. S. H. SHETH
427
:bear more than one n1eaning, that is to say, if the words
are
semantically
A
.ambiguous, or if a provision if read literally, is patently in,:ompatible 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
lhe rule of harmonious construction.
[441 B-D]
Home Building, and Loan Association v. Blaisdell 78 L. Edn. 413 (19341;
·Griswold v. Connecticut 14 L. Edn 2d, 510 ( 1965), Massachusetts S. -& Insurance
B
Co. (1956) 352 U.S. 128 (at p. 138); West Minister Bank Ltd. v. Zang (1966)
A.C. 182 quoted with approval;
S.
Naraya11aswan1i
v.
C.
Panneerselyan1
A.l.R. 1972 S.C. 2284 & 2290 Followed; M. Pentiah v. Veemmallappa A.LR.
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( I) to mean that the judge
cannot be transferred from one High Court to another with his consent. ]'he
C
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 wca-
·pon 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( I) 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 'puhlic 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 bP.comc
a liti!!ant in his own court cannot justify the addition of \vords to an Article
of the Constitution making his consent a pre-condition of his transfer. [445 A, B]
4. It is needless iri 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 is also needless in order to effectuate the object llf the
other constitutional provisions to read any ~uch li1nitation into that
Article.
·The transfer of a High Court Jucfge without his consent will
not damage or
destrC\)' the provisions contained in the Constitution for preserving the independence of the judiciary. [446 E-H. 447 Al
R. M. D. Chanwbaugwalla v. Unian of India, [1957] S.C.R. (930 at 936);
Attorn·ey General v. Prince Ernest Augustus of Hanover, [19571 A.C. 436, 46061; The River Wear Comn1issioners v. William Adannon & 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 appoinn1ent.
T?e 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 tiigh C~urt to
which he is transferred. The Government of India Act did not contain
any
provision for the transfer of ?- _iudge.
Th~t is why it pro~ided that the ~ffice
of a judge shall be vacated either on _the 1udge ~e1ng 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, GJ
M. P. V. Sundarararnir:r v. State of Andhra Pradesh
[1958]
SCR
1422
(at p. 1478), Followed.
6. Clause ( c) of Art. 217, itself makes a distinction bet~een appointment
~and transfer.
They connote two distinct concepts and one 1s not to be conE
F
G
H
••
A
B
c
D
E
F
G
H
428
SUPREME COURT REPORTS
(1978] 1 S.C.R.
fused with the other. The technical rules of procedure governing service conditions cannot affect the interpretation of a substantive provision like the oae
contained in article 222(1) of the Constitution. [449 C, H, 450 Al
7. Whate.ver measures are required to be taken in order to achieve national
integration would ~e 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 i:oncemed 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]
Observlllfion.-[lf at all on n1ature 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 1-ligh Court owe their appointment to the Constitution and
hold a position of privilege under it.
There is a fundan1ental 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 s1gn1ficat:on
o~ that expression.
[450 H, 451 C]
9. Jn fact, that is why the Government cannot on its own, take a unilateral decision in regard to the appointment ·and transfer of High Court Judp:es.
[451 DJ
10. Article 222 ( 1 ) is in substance worded in similar terms as the 1st proviso to Article 124(2) and Art. 217(1). It 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 tile
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 uuless 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 \vhich 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 then1
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 \Vhich 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
.. u1d 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 are outside the contemplation of our coni>titution.
[454 A-Bl
Rolls v. Minister of Town and Country Planning
(1948) 1 All E.R. lJ
C.A. and Fletcher v. Minister of Town and Country Planning
(1947)
All
E.R. 946. referred to.
j
•
. .,, .
,
•
UNION V. S. H. SHETH
429
R. Pushpam v. State of Madras, A.l.R. 1953 Mad 392 Approved;~-
A
Chandramouleshwar Prasad v. Patna
/{igh
Court [1970] 2 SCR 666,
Applied.
\
13. After an effective consultation with the Chief Justice of India, it is
open to the President to arrivC 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
t;he proposed transfer.
But by and large, the opinion of the Chief Justice of
B
India should be acc~pted 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-Bl
Shamrher Singh v. State of-Punjab, [1975] 1 SCR [A.I.R. 1974 SC. 2192]
Reiterated & foIIowed.
14 . .Artic:le 222(1) postulates fair play and contains built-in safeguards irr
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 be tenders his opinion to the Preside'nt.
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 ~
c
D
the purposes of validation of a transfer is out of place in the scheme of Art.
E
221(1). [456 D-E]
Rei v. Unh·ersity of Cambridge (1723). 1 Stn 551; Ridge v. Baldwin 1964
A.C. 40; State of Orissa v. Dr. (Miss) Binapani DPi 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. \Vhen questions of great constitutional importance have
been
raised
F
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. \\'here the language of an eIJ.actment is plain and clear upon its· ·race
and by itself susceptible .to only one meaning. then ordinirily that meaning
G
would have to be given by the court. The words of a statute must be und~r·
stood 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 pooular 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' 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.
Context means in its widest sense -in not only other enacting provi'\iono; of the
same statute but its pre::imb1e
th~ existing state of th~ law. other statutf"S
H
in pari matt•ria and the mischief which .•.. •the statute was intended to remeJy."
The cont0 xt is of the ereatre.t importance in the interpretation of the words
used in a statute .. [467 E-H]
A
B
..
c
D
E
F
G
H
430
SUPREME COURT REPORTS
[1978] 1 S.C.KTown v. Eisner, 245 U.S. 418, Helvering v. Gregory 69 F.{2)d 809; Heydon's case (1584) 3 'Vir'. Rep. 16; 76 ER 637; River Wear Co1nn1issioners
v~
Adamson (1876-77) App. Cs 743 at 764 Referred to.
3. The power to transfer a Judge fron1 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 hin1 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 consent or con1pulsory i.e., without consent, and the \\'Ord "transfer" according to its
plain
natural meaning would include both kinds of transfer.
Havin.!! regard to
manifest intent of the constitution-makers to secure the independe1ice
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 practising 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 H.igh
Courts after his retirernent.
[468 F-H, 469 D]
S/Ja1nsher Singh v. State of Punjab [1975] 1 SCR 874 Applied;
State of West Bengal & Anr. v. Nripendranath Bag.chi [1966] l SCR 771;
State of Assan1 v. Ranga Mol11nmed & Ors. [1967] 1 SCR 54 referred to.
5. On the terms of Art. 222, clause ( 1), the power of transfer
is conferre<l on the President. \vhich 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 Ids consent, it vvould be a
highly
ciangerous 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 \Vord "transfer" which is used there is
a neutral word which can mean consensual as vvell as compulsory transfer and
if the high and noble purpose of the Constitution to secure the independeni.:c
of the superior judiciary J:iy 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. Jns11ra11ce Co. v. U.S. [1956] 352 U.S. 128 Referred to.
State of Assan1 v. Ra11ga Mohn1mad and Ors. [1967] 1 S.C.R. 454, Followed.
7. \.Vhen a judge is transferred to another High Court. he has to make and
subscribe a fresh oath of affirn1ation 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 \!/Ould not become efft>ctive unless the judge who is
appointed makes and subscribes an 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 t_ransferred is essential
for making the transfer effective and there can be no transfer of a judge of :i
High Court without his consent.
[474 F~H]
8. It is true that there might he some cases \Vht're the dictates of public
interest might reQuire tranf;fer of a iudge from one High Court to anothPr. but
such cases by their very nature would be few and far between. It would
not
...
..
l-
•
UNION V. S. H. SHETH
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]
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.
~fhe public interest
in the independence of the judiciary must, therefore, clearly prevail and a
construction which subserves this higher public interest m&st be accepted (476
CD]
Don John Francis Douglas Liyantuige & 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 ex1~rcise oi the power
of the President to transfer a judge from one High Court to another and it is th~t
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 El
A
B
c
11. Art. 50 has been described as "the conscience of
the
Constitution''
D
which embodies the social philosophy of the Constitution and its basic under·
pinnings 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 fora1
of executive control or interference.
[465 E·F]
Per Iyer J.
(On behalf of Fazal Ali J. and himself).
1. Compounding of the /is cannot lull the court into trea1ing 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 obliquity survive
even after the exit of this appeal.
[479 B-C. 480 A-BJ
The highest court with constitutional authority to declare the law
cann1.1t
shrink from its obligation because the lis which has activised its jurisdiction has
justly been adjusted.
Moreover full debate at the bar mut.t be followed
by
fair judicative declaration. [503 G·H]
,
Don John Francis Douglas Liyanange v. The Queen, [1967] I A.C. 259,
Followed.
E
F
2. Statutory interpretation of one clause may, in a sense, affect the fascicu·
G
lus
of "judicial" clauses in the various parts of the constitution. Preceeding
to decide a constitutional dause in an organic code, juristic technique has
to
be perceptive, spacious, creative, not aarrowly grammatic21l, lexicographically
pedantic or traditionally blinkered.
(483 A-B, CJ
3. Legislative history plu~. within circumspect lim'ts. 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 vir.e of 1lccult uncertainty
and v,.·resting of legislative power from where it belongs.
\>Yhilc under~tanding
H
and in~erpreting 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 within the ken
of the activist judge.
[487 B-C, F]
•
A
B
c
D
E
F
H
•
432
SUPREME COURT REPORTS
[J 978) I S.C.R.
While it is true that judicial interpretation should not be
imprisoned
in
verbalism and words lose their thrust whe111 read in vacuo, the Court ~t
seaich ior a reliable scientific method of discovery rather than the speculative
quest for the spirit of the statutes and the cross-thoughts from h~gislatot '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
atlect -lhe basic structure of the national charter viz. the independence of judi ·
ciary, tu dissect a constitutional provision meticulously as if it \Vere 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 aulhenticated by purposeful legislators must possess a mandate.
·
~smm
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
W~ar
Commissioners v. Adamson, 2 App. Court 743 HL 1877; Schegntan Bros v.
Calvert Distillers Corpn. 341, U.S. p. 384 395-397; llertton v. Phillipj 45 Del
156-70 A 2d 15 (1949); A. P. Green Export Co. v. United States 285 F.
2d
383, 386, Town of Menomine.r v. Skubits 53 Wis. 2d 430, 437,
Quoted
with
approval, State of Mysore v. R. V. Bidap, [1974] 3 S.C.C. 337;
Dattatraya
Govind Mahajan v. State of Maharashtra, [1977] 2 S.C.C. 548 refencd to.
4. 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 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 Jaw. not to make it). [501 C-D]
5. A mere convention bas1?d on several considerations can not be
taken
as conclusive of the scope of the Article, when the Court interprets a ronstitutional provision.
On an
obvious interpretation of
Art. 222, the
concepi
of consent cannot be imported therein.
By healthy convention normally the
consent of the Judge concerned should be taken, not so much as a
cons~tu
tional 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
docs exist.
Salutory
safeguards to ensure judicial independence with concern for the A.11-lndia 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 pernic:ousnes" were all in tiie 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·EJ
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 subjcctify
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 behoves us not to stultify them in thei1
silent graves by slurring over the express language interpretatively co invent a
hidden veto power.
[501 F-GJ
Nokes v. Don Caster Amalga1nated Collieries Ltd. 1940 AC l 014 Re[erred
to.
8. Where the first principle of justice to 1the community is contradicted by
the continuance of a judge in a particular state,. the 'independence' prini..::iple
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 i.mpermisaible 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
•
UNION V. S. H. SHETH
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 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.
[ 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
another under the clear sanction of law, Ilamely, Art. 222( 1) of the Constitution, a fresh oath is not necessary.
But even if on a li.beral. interpretatiQn
of Art.