TMI Blog1977 (9) TMI 115X X X X Extracts X X X X X X X X Extracts X X X X ..... d: CHANDRACHUD, J. This appeal by certificate involves the question as to the constitutionality of a notification issued by the President of India on May 27, 1976 which reads thus In exercise of the powers conferred by clause (1) of Article 222 of the Constitution of India, the President after consultation with the Chief Justice of India, is pleased to transfer Shri Justice Sankalchand Himatlal Sheth, Judge of the High Court of Gujarat, as Judge of the High Court of Andhra Pradesh with effect from the date he assumes charge of his office. By, a foot-note, Justice Sheth was requested to take charge of his duties in the Andhra Pradesh High Court Within four weeks from the date of issue of the notification. The notification was issued by the Government of India in its Ministry of Law, Justice and Company Affairs, Department of Justice. Mr. Sheth complied with the Order of transfer and assumed charge of his office as a Judge of the Andhra Pradesh High Court but before doing so, he filed a writ petition, 911 of 1976, in the Gujarat High Court challenging the constitutional validity of the notification on the following grounds : (1) The order was passed without his consent: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated together by the learned Judges as two facets of the same contention and they held, unanimously, that there was no effective consultation with the Chief Justice of India. They arrived at this conclusion by different processes of reasoning into which it is unnecessary to go at this stage. J. B. Mehta J. voided the order of transfer on the ground that Mr. Sheth was never consulted or informed of even the proposal of transfer as per the minimum requirement of natural justice and because it was not demonstrated .... by any material on record that there was effective consultation of the Chief Justice of India as required by the mandatory provision of Article 222(1) . A. D. Desai J. held that the order was unconstitutional because it was passed without Mr. Sheth's consent and secondly because it was passed for a collateral purpose . The discretionary power under article 222(1) was, according to the learned Judge, exercised arbitrarily and unreasonably . D.A. Desai J. considered the matter by formulating these questions : Is the power of the President under Art. 222 unfettered ? What are the conditions for the exercise of such a discretionary power ? Have these conditions be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heir consent is calculated to undermine the independence of the High Court Judges. In order to uphold the independence of the judiciary, which is a basic feature of the Constitution, the Court has not only the power but it is its plain duty to read into article, 222(1) a limitation which is not to be found on the face of that article. This argument is elaborated thus : (1) The transfer of a Judge, in many a case, inflicts personal injuries on him. For example, a Judge transferred from one High Court to another may have to maintain two establishments ; if his wife or unmarried daughter is gainfully employed, she may be required to give up the employment; the education of his children may suffer ; and above all, the transfer of a permanent Judge disables him from practising not only in the High Court to which he was initially appointed but in the High Court or High Courts to which he may be subsequently transferred. To empower the executive to inflict these injuries on a Judge would gravely undermine the independence of the judiciary because, human nature being what it is, a large number of Judges would, consciously or unconsciously, be induced to fall in line with the wishes and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntinuity of service, in the nature of a fresh appointment to the other Court. Since a person cannot be appointed to a post without his consent, article 222(1) should be read as if it contains the words with his consent after the words transfer a Judge and before the words from one High Court to any other High Court . In other words, transfer , within the meaning of article 222(1) means a consensus, not a compulsive shifting of a Judge from one High Court to another. (8) It is of the essence of judicial service that there is no master-and-servant relationship between a Judge and the Government. The Judge cannot be asked by the Government to decide a case in any particular way. Even the higher Court, generally only corrects the Judge of the lower court-it does not command him. Therefore, transfer in article 222(1) does not have the same colour or content as in other services. The concept of 'transfer' under that article is totally different, a concept which must be construed harmoniously with the various constitutional provisions which are enacted in order to secure judicial independence. A non-consensual transfer will provide the executive With a potent weapon to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitution, a Judge of a High Court cannot be transferred without his consent. Since article 222(1) does not provide that such consent is necessary, the argument raises the question whether one can still read into that article words which are not to be found in it. Statutory interpretation, with conflicting rules pulling in different directions, has become a murky area and just as a case-law digest can supply an authority on almost any thinkable pro-position, so the new editions of old classics have collected over the years formulas which can fit in with any interpretation which one may choose to place. Perplexed by a bewildering mass of irreconcilable dogmas, courts have adopted and applied to, cases which come before them rules which reflect their own value judgments, making it increasingly difficult to define with precision the extent to which one may look beyond the actual words used by the legislature, for discovering the true legislative purpose or intent. Traditional overemphasis on the literal aspects of meaning has provoked today's reactionary underemphasis on them , says Reed Dickerson in his innovative work on The Interpretation and Application of Statutes (1), but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g, that is to say, if the words are semantically ambiguous, or if a provision, if read literally, is patently incompatible with the other provisions of that instrument, the court would be justified in construing the words in a manner which will make the particular provision purposeful. That, in essence is the rule of harmonious construction. In M. Pentiah v. Veeramallappa(5) this Court observed : Where the language of a statute, in its ordinary meaning and grammatical construction leads to, a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence...... But, if the provision is clear and explicit, it cannot be reduced to a nullity by reading into it a meaning which it does not carry and, therefore, Courts are very reluctant to substitute words in a statute or to add words to it, and it has been said that they will only do so where there is a repugnancy to good sense. (5) In the view which I am dis- posed to take, it is unnecessary to dwell upon Lord Denning's edict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e government, and whoever come in their way. Dr. Ambedkar, while winding up the debate on the judicial provisions, said that the question as regards the independence of the judiciary was of the greatest importance and that there could be no difference of opinion that the judiciary bad to be independent of the executive C.A.D. Vol. 8 p. 297. Having envisaged that the judiciary, which ought to act as a bastion of the rights and freedom of the people, must be immune from the influence and interference of the executive, the Constituent Assembly gave to that concept a concrete form by making various provisions to secure and safeguard the independence of the judiciary. Article 50 of the Constitution, which contains a Directive Principle of State Policy, provides that the State shall take steps to separate the judiciary from the executive in the public services of the State. The form of oath prescribed by clause VIII, Third Schedule of the Constitution for a Judge or a Chief Justice of the High Court requires him to affirm that he will perform the duties of his office without fear or favour, affection or illwill. The words without fear or favour were added by the Constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the State. These provisions, indisputably, are aimed at insulating the High Court judiciary, and even the officers and servants of the Court, from the influence of the executive. Not content with that, the framers of the Constitution introduced a fasciculus of articles in Chapter VI of Part VI of the Constitution, under the heading 'Subordinate Judiciary'. The provisions of Chapter VI, particularly articles 233(1) and 235, gave rise to a spate of litigation between the State executives and High Courts which had to be resolved by this Court by keeping in view the high purpose of the particular provisions. This Court held that the scope and ambit of control vested in the High Courts under article 235 covers the entire spectrum of administrative control and is not confined merely to general superintendence or to arranging the day-to-day work of the subordinate courts. Thus, the 'control' envisaged by article 235 comprehends control over the conduct and discipline of District Judges (State of West Bengal v. Nrindera Nath Bagchi([1966] 1 SCR 77 1); their further promotions and confirmations (State of Assam v. Kuseswar (AIR 1970 SC 16 16.) and Joginder Nath v. Union of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich the Constitution has conferred on the President by article 222(1) cannot be exercised in a manner which is calculated to defeat or destroy in one stroke the object and purpose of the various provisions conceived with such care to insulate the judiciary from the influence and pressures of the executive. The power to punish a High Court Judge, if one may so describe it, is to be found only in article 218 read with articles 124(4) and (5) of the Constitution under which a Judge of the High Court can be removed from his office by an order of the President passed after an address by each House of Parliament, supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, has been presented to the President in the same session for such removal, on the ground of proved misbehavior or incapacity. Thus, if the power of the President, who has to act on the advice of the Council of Ministers, to transfer a High Court ,Judge under article 222 (1) is strictly limited to cases in which the transfer becomes necessary in order to sub serve public interest, in other words, if it be true that the Presid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; included not merely competitions of a gambling nature but also those in which success depended to a substantial degree on skill, thereby violating the petitioners' fundamental right to carry on business under article 19 (1 ) (g) of the Constitution. It was held by this Court that on a proper construction, the definition of 'prize competition' took in only such com- petitions as were of a gambling nature and no others. Venkatarama Ayyar J. delivering the judgment of the Constitution Bench, observed that on a literal construction of the definition it was difficult to resist the contention of the petitioners that the definition covered competitions which depend to a substantial degree on skill but the fact that the Court had to ascertain the intention of the legislature from the words actually used in the statute did not mean that the decision must rest on the literal interpretation of the words in disregard of all other material : To arrive at the real meaning, it is always necessary to get an exact conception of the aim, scope and object of the whole Act . (P. 936). In Prince Ernest Augustus of Hanover (supra) a great great grandson of Ernest, Duke of Cumberland, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of a Judge or Chief Justice from another High Court and on the rarest of rare occasions which can be counted on the fingers of a hand, it becomes necessary to withdraw a Judge from a circle of favorites and non-favourites. The voice of compassion is heard depending upon who articulates it. Though transfers in such cases are preeminently in public interest, it will be impossible to achieve that purpose if a Judge cannot be transferred with out his consent. His personal interest may lie in continuing in a Court where his private interest will be served best, whereas, public interest may require that his moorings ought to be served to act as a reminder that 'the place of justice is a hallowed place . Mr. Seervai does see the possibility of such a need but he contends that if the choice is between two alternative evils, we should Prefer the construction which will not impair the efficacy of the various safeguards created by the Constitution for unfolding the independence of the judiciary and reject the other which will enable a Judge to be transferred in a few isolated cases of the type described above. This argument loses its force and validity in view of my holding that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Mr. Seervai's argument on the question of consent is that the transfer of a High Court Judge from one High Court lo another results in a fresh appointment of the Judge to the other High Court and since a person cannot be appointed as a Judge with,out his consent, the transfer cannot be made save With the- consent of the Judge. In support of this argument Mr. Seervai relies in the first place on the constitutional requirement that a Judge, upon being transferred to another High Court, has to take a fresh oath. It is ,quite correct that a Judge who is transferred to another High Court has to take a fresh oath before he assumes the charge of his office as a Judge of the High Court to which he is transferred. But that does not support the argument that he enters upon a new office as a result of a fresh appointment. The simple fact is that a Judge is transferred to another High Court, not appointed once over again as a Judge of (1) [1969] 1 A.C. 191 (at pp. 228,268, 270) 44 8 a High Court or even as a Judge of the High Court to which he is transferred, The reason why he has to take a fresh oath upon being transferred to; another High Court is to be traced to the form of the oath p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Constitution in clause (c) of the proviso to article 217(1) to mean that the process of transfer of a Judge from one High Court to another involves a fresh appointment. It is impossible to accept this contention. The Government of India Act did not contain any provision for the transfer of a Judge. That is why it provided that the office of a Judge shall be vacated either on the Judge being appointed to be a Judge of the Federal Court or on being appointed as a Judge of another High Court. If anything, the learned Attorney-General seems to me to be justified in relying upon the legislative history of the provision regarding (1) [1958] SCR 1422(at p.1478) 44 9 transfer in order to repel Mr. Seervai's submission. The, Government of India Act spoke of a Judge being apointed to be a Judge of another High Court. Clause (c) of the proviso to article 193(1) of the draft Constitution of India contained a similar provision to the effect that the office of the Judge shall be vacated by his being appointed by the President to be a Judge of the Supreme Court or of any other High Court . The draft Constitution too did not contain any provision for transferring a High Court Jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he two expressions are used to convey the same meaning and are accordingly interchangeable. I do not think that by reason of these provisions the two expressions, transfer and appointment, can be taken to mean one and the same thing. The provisions on which counsel relies pertain to the conditions of service of High Court Judges of which the intendment is that as in the case of a High Court Judge transferred to another High Court, so in the case of a High Court Judge appointed to the Supreme Court, actual service should include the joining time, as if the Judge is transferred to another Court. Such technical rules of procedure 5-930SCI/77 governing service conditions cannot affect the interpretation of a substantive provision like the one contained in article-222(1). Two things remain to be considered on this aspect of the matter the requirement of national integration and the nature of relationship between Government and the High Court Judges. As regards the first, no one can deny that whatever measures are required to be taken in order to achieve national integration would be in 'public interest. Whether it is necessary to transfer Judges from one High Court to another ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... do his work in the discharge of his official functions. A High Court Judge is also not bound, nor does he undertake, to obey an order of the Government within the scope of his duties. Judges, of the High Court owe their appointment to the Constitution and hold a position of privilege under it. Their tenure is guaranteed by article 217 (1 ) until they attain the age of 62.Their salary is protected by article 221 (1). They are entitled by clause (2) of that article to such allowances and to such rights in respect of leave of absence and pension as may from time to time be determined by Parliament and, until so determined, to such allowances and rights- as are specified in the Second Schedule to the Constitution. By the proviso to article 221(2), neither their allowances nor their rights in respect of leave of absence or pension can be varied to their disadvantage after their appointment; and they cannot be removed from their office save by following the procedure prescribed by article 218 read with articles 124(4) and (5). The very oath of office which they take in pursuance of article 219 and in accordance with the form prescribed by clause VIII of the Third Schedule, requires them ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter consultation with the Chief Justice of India, transfer a Judge from one High Court to any other High Court . Considering the importance which the Constitution gives to appointments to the highest echelons of the State and Union judiciary, it is hard to accept that the obligation which the Constitution imposes upon the President to consult the authorities named in the particular articles, casts no higher duty on the President than merely to convey to them what be proposes to do and obtain their answer. Before we go deeper into this point, it is necessary to notice the important distinction which the Constitution has made in the matter of consultation under article 124 (2) on the one hand, and under the 1St proviso to that article on the other. While appointing a Judge of the Supreme Court, the President may consult such Judges of the Supreme Court and of the High Courts as he may deem necessary for the purpose. As contrasted with the proviso, this provision shows that there is no obligation on the President, while appointing a Judge of the Supreme Court, to consult any Judge or Judges of the Supreme Court or of the High Courts. Since he may or may not consult them, their opin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice of India. Consultation then being obligatory, the question which arises for consideration is what exactly does the President have to de in the discharge of his constitutional obligation to consult the Chief Justice of India in the matter of the transfer of a High Court Judge? What is, in other words, the nature of the process involved in what the Constitution conceives as consultation by the President with the Chief Justice of India ? What are its minimal requirements ? Is 'It sufficient for the President to apprise the Chief Justice of ,he proposed transfer and to await the reaction of the Chief Justice to the proposal ? Or, does consultation mean something more meaningful than what may in practical terms be described as 'sounding' the Chief Justice ? Is the Chief Justice entitled upon being consulted by the President, to ask for the relevant data to enable him to tender his considered opinion on the subject ? These then are the important matters for consideration. Article 222(1) which requires the President to consult the Chief Justice of India is founded on the principle, that in a matter which concerns the judiciary vitally, no decision ought to be taken by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the other hand, a sufficient opportunity must be given to the local authority to tender advice . Thus, deliberation is the quintessence of consultation. That implies that each individual case must be considered separately on the basis of its own facts. Policy transfers on a wholesale basis which leave no scope for considering the facts of each particular case and which are influenced by one-sided governmental considerations are outside the contemplation of our Constitution. It may not be a happy analogy, but it is common sense that he who wants to 'consult' a doctor cannot keep facts up his sleeve. He does so at his peril for he can receive no true advice unless he discloses facts necessary for diagnosis of his malady. Homely analogies apart, which can be multiplied, a decision of the Madras High Court in R. Pushpam Anr. v. Stale of Madras(AIR 1953 Mad 392) furnishes a good parallel. section 43(b), Madras District Municipalities Act, 1920, provided that for the purpose of election of Councillors to a Municipal Council, the Local Government 'after consulting the Municipal Council' may determine the wards in which reserved seats shall be set apart. While settin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Singh (supra) that in all conceivable cases, consultation with the Chief Justice of India should be accepted by the Government of India and that the Court will have an opportunity to examine if any other extraneous circumstances have entered into the verdict of the executive if it departs from the counsel given by the Chief Justice of India. In practice the last word in such a sensitive subject must belong to tile Chief Justice of India, the rejection of his advice being ordinarily regarded as prompted by oblique considerations vitiating the order. (page 873). It is hoped that these words will not fall on deaf ears and since normalcy has now been restored, the differences, if any, between the executive and the judiciary will be resolved by mutual deliberation each, party treating the views of the other with respect and consideration. One of the, learned Judges of the Gujarat High Court, J. B. Mehta, J., has invalidated the order of transfer on the additional ground that it was made in violation of the principles of natural justice, a consideration which in my opinion is out of place in the scheme of article 222(1). It is true that the, frontiers of natural justice principles ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the Judge who, is proposed to be transferred, that he shall consider every relevant fact before he tenders his opinion to the President. In the discharge, of this constitutional. obligation, the Chief Justice would be within his rights, and indeed it is his duty whenever necessary, to elicit and ascertain further facts either directly from the Judge concerned or from other reliable sources. The executive cannot and ought not to establish rapport with the Judges which is, the function and privilege of the Chief Justice. In substance and effect, therefore, the Judge concerned cannot have reason to complain of arbitrariness; or unfair play, if the due procedure is followed. I must add that Mr. Seervai did not argue that the order of transfer is bad for non-compliance with the principles of natural justice. This concludes the discussion on the, points involved in the appeal. Unusually, in a matter of this importance, it is needless to work out the final order because at the end of the, arguments, on August 26, 1977, the appellant and respondent 1 arrived at a settlement in the following terms : On the facts and circumstances on record the present government do not consider that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ula, the first respondent withdrew his petition, but having regard to the great constitutional importance of these questions, I think the Court ought to express its opinion upon them, now that they have been raised and fully argued before us. The first respondent Mr. Justice S. H. Sheth, who was a Judge of the Gujarat High Court 'since 23rd April, 1969, was, by a Presidential Order dated 27th May, 1976, transferred as Judge of the High Court of Andhra Pradesh with effect from the date he assumes charge of his office . The order was purported to be made by the President in exercise of the powers conferred under Art. 222, clause (1) of the Constitution. The first respondent immediately filed Special Civil Application No. 911 of 1976 in the High Court of Gujarat challenging the validity of this order and he joined the Union of India as well as the Chief Justice of India as party respondents to the petition. The petition was admitted and rule issued by Mr. Justice D. A. Desai on 16th Julie, 1976. The first respondent did not apply for interim relief as he did not wish to continue to function as a Judge of the Gujarat High Court under an interim order made by the Court, but he h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this correspondence, the Special Bench adjourned the hearing of the case and on 10th September, 1976 made an order stating that though the letter addressed by the Judges of the High Court, including, the members of the Special Bench,-to the Chief Justice of India was a highly confidential communication, they and their colleagues who, were signatories to that letter, had no objection if the Chief Justice of India, who was the addressee of the letter, desired to produce it. The privilege of confidentiality was thus, in all fairness, withdrawn by the Judges of the High Court, who were signatories to this letter, but the Chief Justice of India chose not to produce it at the adjourned hearing of the petition on 20th September, 1976. And yet on the basis of this letter, the Government of India, through its counsel, maintained its objection that the Judges constituting the Special Bench should not hear the case and filed a written submission to that effect. There was considerable argument before the Special Bench in regard to this objection, but it was overruled and the Special Bench. decided to proceed with the hearing of the petition on merits. The learned Attorney General, appearing o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... objection was based solely on the letter addressed by some or the judges of the High Court to the Chief Justice of India which, according to the Government of India, it had not seen and of the contents of which, it was admittedly not aware. It is difficult to appreciate how even without knowing what were the contents of this letter, the Government of India could raise an objection on the basis of such letter. It was to my mind an act of impropriety on the part of the Government of India. It would have been liable to the strongest condemnation even if it had proceeded from a private party and much more so, must it be regarded when the Government of India is party to it. I may also observe that when the Government of India raised an objection against the judges of the Special Bench hearing the petition on the basis of the letter addressed by them to the Chief Justice of India, it would have been better if the Chief Justice of India had produced the letter; particularly when the privilege of confidentiality was withdrawn by its authors, for that would have helped to clear the position of the three judges, instead of leaving them in a situation where there might be some 'scope for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of punishment because he has decided cases against the Government. It is a power conferred on the President to be exercised in furtherance of public interest and not by way of victimisation for inconvenient decisions given by a High Court Judge. Here, on the record, it does appear that the transfer of the 1st respondent was punitive in character and was not prompted by considerations of public interest. It was admitted by part of mass transfers of 16 High Court Judges and though a suggestion was made by the Government of India in its affidavit in reply that the transfers were made with a view to strengthening national integration by cutting at the barrier's of regionalism and parochialism, the Government of India did not choose to disclose,, the principle on which these 16 High Court Judges were picked out for being transferred. It is indeed strange that the Government of India should have selected for transfer, by and large, those High Court Judges who had decided cases against the Government during the emergency. I should have thought that when the 1st respondent averred in so many terms that his transfer was by way of punishment for deciding against the Government; the Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the Chief Justice of India was a condition precedent to the exercise of the power to pass an order of transfer under Art. 222, cl. (1) and since there was no material on record to show that there was such effective consultation with the Chief Justice of India, the condition precedent was not satisfied and the order of transfer was bad. The Special Bench, on this view, allowed the petition and struck down the order of transfer as invalid. This order of the Special Bench is challenged in the present appeal preferred after obtaining certificate from the High It will be apparent from what is stated above that only grounds (i) and (ii) survive for consideration in this appeal. I shall presently examine these grounds, but before I do so, a few preliminary remarks in regard to the position of a High Court Judge under the constitution would not be inapposite. Chapter V in Part VI of the Constitution deals with High Courts in the States. Art. 214 provides that there shall be a High Court for each State and under Art. 216, it is laid down that every High Court shall consist of a Chief Justice and such other judges as the President may from time to time deem it necessary to appoint. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o basic characteristics of the judicial function, namely, independence and impartiality. Two propositions clearly emerge on a consideration of these provisions read in the context of the constitutional scheme. The first is that the appointment contemplated under these provisions is appointment of a person as a Judge of a particular High Court and not as a Judge simpliciter. There is no All-India Cadre of High Court Judges. Secondly, a Judge of the High Court is not a Government servant, but he is the holder of a constitutional office. He is as much part of the State as the executive Government. The State has in fact three organs, one exercising executive power, another exercising legislative power and the third exercising judicial power. Each is independent and supreme within its allotted sphere and it is not possible to say that one is superior to the other. The High Court, constituted of the Chief Justice and other Judges, exercises the judicial power of the State and is coordinate in position and status with the Governor aided and advised by the Counsel of Ministers, who exercises the executive power and the Legislative Assembly together with the Legislative Council, if any, whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right to rise in the proud consciousness that justice is administered in the realms of Her Majesty the Queen, immaculate, unspotted, and unsuspected. There is no human being whose smile or frown, there is no Government, Tory or Liberal, whose favour or disfavour can start the pulse of an English Judge upon the Bench, or move by one hair's breadth the even equipoise of the scales of justice. The framers of our Constitution were aware of these constitutional developments in England and they were conscious of our great tradition of judicial independence and impartiality and they realised that the need for securing the independence of the judiciary was even greater under our Constitution than it was in England, because ours is a federal or quasi-federal Constitution which confers fundamental rights, enacts other constitutional limitations and arms the Supreme Court and the High Courts with the power of judicial review and consequently the Union of India and the States would become the largest single litigants before the Supreme Court and the High Courts. Justice, as pointed out by this Court in Shamsher Singh v. State of Punjab,(1) can become fearless and free only if institu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y in administering Justice in the discharge of his duties. Article 215 confers upon the High Court a power to punish for contempt of itself and thus protect itself against interference in the course of administration of justice from whatever source it may come. Form VIII in the Third Schedule which is the form of oath prescribed for a Chief Justice or a Judge of a High Court also emphasises the absolute necessity for judicial independence if the oath is to be observed, because it requires the Judge to swear that he will perform the duties of his office without fear or favour, affection of ill-will . The independence of the High Court is also sought to be, reinforced by Article 229 which provides that appointments of officers and servants shall be made by the Chief Justice or such other Judge or officer as he may appoint, so that there is not even indirect interference with judicial administration by the executive. And hovering over all these provisions like a brooding omnipresence is Article 50 which lays down, as a Directive Principle of State Policy, that the State shall take steps to separate the judiciary from the executive in the public services of the State. This provision, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting on appointment or promotion to a vacancy in the cadre. If it is the former, transfer would be within the power of the Governor under Article 233, but if it is the latter, transfer would cc necessarily be outside the power of the Governor and fall to be made by the High Court as part of the control vested in it by Article 235 . This Court preferred the narrower meaning, since it was more in accord with the constitutional policy of securing the independence of the Subordinate Judiciary and held that transfer of a District Judge is a matter of control of District Judges which is vested in the High Court under Article 235. It is apparent that under Article 233 to 237 the control over the Subordinate Judiciary in respect of transfer and disciplinary action is vested in the High Court to the exclusion of the State Government for a purpose, and that purpose is the securing of judicial independence. That is why Krishna Iyer, J., speaking on behalf of himself and me, pointed out in Shamsher Singh v. State of Punjab (supra), the exclusion of executive interference with the Subordinate Judiciary, i.e., grass-roots justice, can prove a teasing illusion if the control over them is veste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to transfer a Judge from one High Court to another is that there must be previous consultation with the Chief Justice of India and there is no explicit requirement that the transfer may be made by the President only with the consent of the Judge. But the question is : can the requirement of consent be read into this clause by necessary implication ? That would depend on the interpretation of the language of this clause in the light of the well recognised canons of construction. To that question I will now turn. Now, it is undoubtedly true that where the language of an enactment is plain and clear upon its face and by itself susceptible to only one meaning, then ordinarily that meaning would have to be given by the Court. In such a case the task of interpretation can hardly be said to arise. But language at best is an imperfect medium of expression and a variety of significations may often lie in a word of expression. It has, therefore, been said that the words of a statute must be understood in the sense which the legislature has in view and their meaning must be found not so much in a strictly grammatical or etymological propriety of language, nor in its popular use, as in the su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) what remedy Parliament has appointed; and (4) the reason of the remedy. There is also another rule of interpretation which is equally well settled and which seems to follow as a necessary corollary, namely, where the words, according to their literal meaning- produce an inconsistency, or an absurdity or inconvenience so great as to convince the Court that the intention could not have been to use them in their ordinary signification , the Court would be justified in putting on them some other signification, which, though less proper, is one which the Court thinks the words will bear . Vide River Wear Commissioners v. Adamson(3). It is in the light of these principles of interpretation that I must proceed to consider what is the true meaning and effect of cl. (1) of Article 222: whether it permits transfer of a Judge from one High Court to another, irrespective of his consent. Now, transfer of a Judge may be consensual, i.e., with consent, or compulsory, i.e., without consent, and the word 'transfer' according to its plain natural meaning would include both kinds of transfer. But the question is whether, having regard to the manifest intent of the constitution-makers to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nherited a business. Furthermore, the transfer would inflict an additional disability on the Judge, in that, he would be disabled from practicing not only in the High Court to which he was originally appointed, but also in the High Court to which he is transferred so that repeated transfers might prevent him from practising in a number of High Courts after his retirement. It would also be highly inconvenient and expensive to the Judge to go to his home State on auspicious occasions or in case of death or illness of some close relative, particularly where he is transferred to a distant High Court, as happened in the case of a few of the 16 judges picked out for transfer. The compensatory allowance payable to the Judge in such a case would reimburse him only in respect of the expenditure on two Establishments, but the other injuries would, by their very nature, be incapable of compensation and would cause hardship and suffering to the Judge and the members of the family. It would, thus, be seen that the power to transfer a Judge from one High Court to another is not an innocuous power but it is a power the exercise of which would almost inevitably inflict injuries on the Judge who is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toil; Each strong idea can use her as its tool; Accepting every brief she pleads her case. Open to every thought she cannot know. This would not only have a demoralising effect on the High Court judiciary, but it would also shake the confidence of the people in the administration of justice in cases where the Government is a party. It is no doubt true that previous consultation with the Chief Justice of India is a condition precedent to the exercise of the power of transfer by the executive add, as I shall presently point out, this consultation is not a mere idle formality, but has to be real and substantial, but even so I do not think it affords sufficient protection to the High Court Judge against unjustified transfer by the executive. It is settled law that though consultation with the Chief Justice of India is obligatory, and as pointed out by this Court in another connection, the opinion of the Chief Justice of India should be given the greatest weight, it would not be strictly binding on the President, that is, the executive, and for all practical purposes the final decision would rest in the hands of the executive, so that in the ultimate analysis the High Court J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edings for challenging the transfer aid even if he takes such proceedings, it would be very difficult for him to establish that the transfer is prompted by a collateral or improper purpose and is not in public interest. The net result would be that the High Court-Judge would be without any effective remedy and he would have to submit to the transfer made by the executive, as did all the 16 judges affected by the mass transfers, barring the 1st respondent, and that would most assuredly have the tendency to undermine the independence of the High Court Judiciary. Now, when the constitution-makers prized the independence of the judiciary as a cardinal virtue and accepted it as an article of faith necessary for infusing life and meaning in the rule of law and with that end in view, made detailed provisions in the Constitution, with the greatest care, insulating the High Court Judiciary from executive in- fluence. or interference in any form. It is inconceivable that they should have left a loophole and conceded power to the executive to inflict injury on a High Court Judge by transferring him without his consent, so as to wipe out the effect of the other provisions and denude them of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... without his consent are not to be found in clause (1) of Article 222, but the word 'transfer' which is used there is a natural word which can mean consensual as well as compulsory transfer and if the High and noble purpose of the Constitution to secure that independence of the Superior Judiciary by insulating it from all forms at executive control or interference is. to be achieved, the word 'transfer' must be read in the limited sense of consensual transfer. It must be remembered that when the Court interprets a constitutional provision, it breathes life into the inert words used in the founding document. The problem before the Constitution Court is not a mere verbal problem. Literalness , observed Frankfurter, J., may strangle meaning and he went on to add in Massachusetts S. Insurance Co. v. U.S.(1) that there is no surer way to misread a document than to read it literally, The Court cannot interpret a provision of the Constitution by making a fortress out of the dictionary . The significance of a constitutional problem is vital, not formal : it has to be gathered not simply by taking the words and a dictionary, but by considering the purpose and intend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the territory of India . Now under the Government of India Act, 1935 also there was a similar provision in proviso (c) to sub-section (2) of section 200, but this provision employed a slightly different phraseology and provided that the office of a High Court Judge shall be- vacated by his being appointed to be a Judge of the Federal Court or of another High Court. Neither in proviso (c) nor in any other provision of the Government of India Act, 1935 was the word 'transfer' used and there was also no specific provision in that Act conferring power to transfer a High Court Judge. The power to transfer a High Court Judge was expressly conferred for the first time under the Constitution and it was provided that the office of a High Court Judge shall be vacated by his being transferred to another High Court. The question is whether the use of the word 'transfer' in the Constitution makes any difference to the position which obtained under the Government of India Act, 1935. There is one difference which is obvious and it is that, whereas under the Government of India Act, 1935, it was only when appointment to another High Court was made by the Governor- General by foll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt . This clearly shows that the word 'transfer' is used by the constitution-makers in the mechanical sense of going from one post to another and not in the sense, in which it is ordinarily used where there is transfer from one station to another within the same cadre. Even appointment of a High Court Judge to the Supreme Court is regarded as transfer to the Supreme Court. I have, therefore, no doubt that when a Judge is transferred from one High Court to another, be is appointed to the High Court to which he is transferred and it is only when he assumes charge of the office of Judge of that High Court by making and subscribing an oath or affirmation before the Governor of the State, that he ceases to be a Judge of the High Court from where he is transferred. Now, it is difficult to believe that the constitution-makers could have ever intended that appointment of a Judge to a High Court or to the Supreme Court could be made without his consent. How would such appointment become effective unless the Judge who is appointed makes and subscribes an oath or affirmation before the Governor, in case of appointment to the High Court and before the President, in case of appointmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence to allow the executive to hold out blandishment or show favour to a High Court Judge as to put it within the power of the executive to inflict injury on him and consultation with the Chief Justice of India was intended to act as a check upon it. I think it was Mr. Justice Jackson who said that judges are more often bribed by their ambition and loyalty than by money . The Chief Justice of India was, therefore, entrusted with the duty to ensure that no favour was shown by the executive in transferring a Judge from one High Court to another so as to place him in a more advantageous position, unless interest of the administration of justice demanded it. Then, it was urged that if such a narrow view was taken as regards the meaning and content of the word 'transfer' in clause (1) of Art. 222, it would become impossible to transfer a Judge whose continuance in a particular High Court to which he is appointed is undesirable on account of doubtful integrity, improper conduct or undue involvement with lawyers and members of the public. Would that not be prejudicial to the interest of administration of justice and hence detrimental to public interest ? Does public interest not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitution makers have declared in no uncertain terms that one of the most' fundamental public interests shall be fearless justice by an independent judiciary and that public interest must determine the choice of' the court and persuade the court to accept a construction which promotes that public interest rather than impairs it. It is no doubt true that by this interpretation, the power of the executive to transfer a High Court Judge would be considerably circumscribed, but the power being of such nature and character that its improper exercise can gravely imperil the independence of the judiciary which is one, of the fore-most concern of the Constitution, it has to be limited in order to prevent its possible abuse or misuse. It is often said by courts that the entrustment of power in the hands of high functionaries of State is itself a grantee against its abuse, but we have seen in our own times that this power of transfer has been abused by the highest in the land and the so called safeguard of consultation with the Chief Justice of India has proved to be of no avail. And, as pointed out by the Judicial Committee of the Privy Council' in Don John Francis Douglas Livan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... since as already pointed out in the beginning of the judgment, the parties settled the matter between them after the arguments were ended and we accordingly passed an order on August 26, 1977 disposing of the appeal in terms of the settlement. Since, however, there was full debate before us and elaborate arguments were advanced on the two points arising for consideration, we decided to give a considered judgment dealing with both the points. This judgment sets out my conclusions on the two points and gives my reasons for reaching those conclusions. KRISHNA IYER, J.-A Judge assailed his transfer by the President of India from one High Court to another on the ground of violation of mandatory norme, and sought and got 'nor-transferability' justice from his peers. The Union of India, aggrieved by the statement of law and assessment of fact, has attacked this verdict. Such is the case, capsulated in a couple of sentences but canvassed by counsel at erudite length, the subject of justice to Judges being virgin and the theme of 'lawful illegality' being amenable to imaginative submissions. Two disturbingly vital, potentially portentous problems of Sumter Power, are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... constitutional calculus is authoritatively spelt out by this Court under Article 141. The pathology of power may unpredictably show up unless correctional vigilance makes its constant curial presence felt. We may mention here that as the arguments were drawing to a, close, there was a rapprochement move, the political party now in office at the Union level reportedly having repeatedly stated at the 'hustings'-to borrow the words of Shri Seervai, counsel for the 1st respondent-that 'transfers' of High Court judges effected by its predecessor-in-power would be cancelled. Pursuant to this policy a statement was made, by the learned Attorney General, concurred in by Shri Seervai, that the 1st respondent was proposed to be re-transferred by the President of India and that consequently the relief prayed for was in substance being conceded. Every dispute that ripens into a fruitful, consensual, resolution, ends happily, and' so, we should have made short shrift of the litigation on a welcome 4 79 compromise. But we heard counsel on the points covered by the judgment under appeal and so deal with them in fairness to the forensic submissions, the Bench of the High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ging social pressures and economic needs.-Law in a Changing Society (W. Friedmann). The wider amplitude and profound implications of judicial independence may have to be expatiated upon a little later, but suffice it to say, that most Constitutions of the world, Socialist and Capitalist. have made it axiomatic that Judges shall be free and fair and fearless in professional functions. Those who denied it once or doubt it now may live to do it reverence from experience. What falls for consideration in the present appeal is a closer look at the provision for judicial transfers and the content of consultation' as set out in the text and context of our Constitution. The construction of Article 222 has to be attempted in this larger setting since it has a grave import for our country's progress in many respects. Not to decide, these issues squarely raised in this appeal merely because of the appellant and the 1st respondent having exchanged assurances, if any, is to leave the jural area in twilight with lamp in hand. Indeed, the issues of semantics and modalities raised in respect of Article 222 and the fairplay implied in its mechanics, where orders constitutionally drap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xtual content of 'transfer' the meaning, measure and materiality of the expression , consolation', the pertinence and impertinence of considerations governing the exercise of 'transfer power' over judges under Article 222. What are the modalities, parameters, normae and mechanics of Article 222 so that the purpose of the provision may be fairly, not oppressively, executed by the President, after consulting the Chief Justice? Before we enter on a discussion of these crucial questions, we may record the fact that the learned Attorney General agreed that I consultation',. as contemplated in Article 222, was a high constitutional requirement demanding substantial compliance and not dismissible as an empty formality. It was also conceded by the Attorney General that transfer. of judges should be an exception and resorted to only in public interest. Nor was there any dispute about the competence of the Court under Article 226 to exercise its power of judicial review of the Presidential action if there was present any reason within the range of non- consultation, illusory consultation, ulterior purpose or non-application of the mind and the like which may be con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may not be voided by judicial review of State policy on the score of unpalatable unconventionality. Some of the thought processes bearing on relevance and irrelevance of considerations relating to transfer of judges, as set out in the rejoinder affidavit and as articulated by Shri Seervai in his puissant submissions 7-930SCI/77 of impassioned conviction) induce this observation. We do not elaborate save to say this. On policy and strategy the President is the judge. On power and limitations, the judge presides. Even so, the creed of judicial independence is our constitutional 'religion' and, if the Executive use Article 222 to imperil this basic tenet, the Court must 'do or die'. For, when curial justice or judicial freedom is jeopardised by unconstitutional action, what survives? So a balance must be struck. Subject to the major premise or non- negotiable promise of non-interference with judicial personnel by methods traumatic or temptational, the rule is clear. The Court could not, even if it would, project its pet aversions to reject progressive policies of Administration even relating to the judiciary; an the Court would not, even if it could, hesitate to ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t seek to be exhaustive but exemplify that the, independence-imperative vis-a-vis the courts is effectuated by the consultative component in any decision seriously affecting the, appointment, conditions of service and kindred matters bearing on the judiciary at various levels. The pervasive importance of our ruling on the question before us is thus clear. Statutory interpretation of one, clause may, in a sense, affect the fascist of 'judicial' clauses in the various parts of the Constitution. We are free to concede, however, that the extent, nature and process of consultation may vary to a degree, depending on the responsible levels, high functionaries, other protective provisions and like factors. Whether it extends to consent of the judge concerned is another matter we have to decide, as Sri Seervai has been at great pains to 'proselytise' us to his viewpoint, if we may appreciatively put it that way. Proceeding to decide a constitutional clause in an organic code, our juristic technique has to be perceptive spacious, creative, not narrowly grammatical, lexicographically pedantic or traditionally blinkered, informed by Lord Denning's picturesque words Law doe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial acts from the Legislature, which is a political assembly, and the provisions of Article 215 show that the High Court has power to protect itself against interference in the course of administration of justice from whatever quarter it may come. (g) Under the general law of Civil liability (Tort) words spoken or written in the discharge of his judicial duties by a judge of the High Court are absolutely privileged and no action for defamation can lie in respect of such words. This absolute immunity is conferred on the judges on the ground of public policy, namely, that they can thereby discharge their duty fearlessly. (h) The form of oath prescribed in the 3rd Schedule for a Chief Justice or a Judge of the High Court emphasises the absolute necessity for judicial independence if the oath is to be adhered to, because it requires the judge to swear that he will perform the duties of his office without fear or favour, affection or illwill. ( Emphasis supplied). These words have been added to the form of the judge's oath prescribed by the, G.I. Act 35, Schedule IV, 2. (i) The independence of the High Court is emphasised by Article 229 which provides that appointments of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 57 AC 436) stated at p. 461 : For words, and particularly general words, cannot be read in isolation : their colour and content are derived from their context. So it is that I conceive it to be my right and duty to examine every word of a statute in its context, and I use 'context' in its widest sense, which I have already indicated as including not only other enacting provisions of the same statute, but its preamble, the existing state of the law other statutes in pari material and the mischief which I can, by those and other legitimate means, discern the statute was intended to 'remedy. Since a large and ever-increasing amount of the time of the courts has, during the last three hundred years, been spent in the interpretation and exposition of statutes, it is natural enough that in a matter so complex the guiding principles should be stated in different language and with such varying emphasis on different aspects of the problem that support of high authority may be found for general and apparently irreconcilable propositions. I shall endeavor not to add to their number, though I must admit to a consciousness of inadequacy if I am invited to interpret any part of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nited States : 259 U.S. 191, 196). Even so, we agree with the emphasis laid by Shri Seervai on the ruling in River Wear Commissioners v. Adamson (2 App. Cas. 743, HL 1877) ...... (W) e are to .... (give) the words their ordinary signification, unless when so applied they produce an inconsistency, or an absurdity or inconvenience so great as to convince the. Court that the intention could not have been to use them in their ordinary signification, which though loss proper, is one which the Court , thinks the words will bear. . This Court has veered to the view that whatever is logically relevant is legally look-at-able, See : State of Mysore v. R. V. Bidap (1974) 3 SCC 337 and Dattaraya Govind Mahajan v. State of Maharashtra (1977)2 SCC 548. Truth is not a cloistered virtue but carefully to be located. The universe of meaning is not a soundproof system nor a noisy babel. We have guidelines, not rituals. The rule is not, always literality, for that sounds like bigotry. Nor is it whatever the interpreter chases, like historicity, sociology, contextuality and a host of fancy-dress fashions, for that will create unwarranted variances and supersede the law-maker by a side-wind. Words ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one that has folded up its 4 88 papers and joined friends at the country clubs or in the cemetery. [C. Curtis, A Better Theory of Legal Interpretation, 3 Vand L. Rev. 407, 415 (1950), rephrased in It's Your Law 54, 55 [1954)] (Dickerson, p. 245) While we agree that judicial interpretation should not be imprisoned in verbalism and words lose their thrust when read in vacuo, we must search for a reliable scientific method of discovery rather than the speculative quest for the spirit of the statute, and the crossthoughts from legislators' lips or Law Commissioner's pens. They edify but are not edictal. In Hutton v. Phillips, the Supreme Court of Delaware threw useful light on the use of contextual and environmental background to correct construction of statutes : . . . (Interpretation) involves far more than picking out dictionary definition of words or expressions used. Consideration of the context and the setting is indispensable properly to ascertain a meaning. In saying that a verbal expression is plain or unambiguous, we mean little more than that we are convinced that virtually anyone competent to understand it, and desiring fairly and impartially to ascert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... coleus. But, before that, in the spirit of what we have, said, we may refer to, a fundamental con- sideration which must be, regarded almost as inspirational in the art of interpretation of a Constitution when the clauses to be construed are so cardinal as to affect the basic structure of the national charter, Viz., the independence of the judiciary. To dissect a constitutional provision meticulously as if it were a cadaver is to miss the life of the charter we are expounding. To change the metaphor, then the arrow hits a mark 'the archer never meant'. Shri Seervai set tremendous store by the contention that Article 217(1), proviso, (c), Article 222 and a family of 'judicial' articles dealing with the superior court judges, including the items in schedule III relating to Form of Oath prescribed for judges, highlight the sacrosanct character of the infrastructure constructed by the Constitution as the delivery system of justice. The Chapter on 'subordinate judiciary' was also touched upon. Shri Gupte, the learned Attorney General, assured the Court that he and his client were second to none in upholding the independence of the judiciary but contended th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecept must be perceived as part of and not paramount to the ensemble of values which makes a people free. It is not as if judicial independence is an absolute end overriding the people's well-being. 'Nothing is more certain in a modem society', declared the U.S. Supreme Court at mid-century, 'than the principle that there are no absolutes'. The world of law, like that of physics, was perceived only as the relativity of one value compared with another. (Schwartz, p. 269-70). This relativity is inevitable in a changing society like ours. Even in America 'the old justice in the economic field (affirmed John, Dewey) consisted' chiefly in securing to each individual his rights of property or con-, tracts. The new justice must consider how it can secure for each individual a standard of living, and such a share in the values of civilisation as shall make possible a full moral life. (Schwartz, p. 271). The nostalgic image of celestial justices wearing 'independent ermine. unsullied by the dusty soil 'where the tiller is tilling the hard ground and where the pathmaker is breaking stones' will be, rebuffed by Justice, social and economic, with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... common-weal, and conducive to that object, we must conceive the ideology of the independence of the judiciary. Once this major premise granted, 'hands off judges' is too sacred to be sacrified. For corrosion of 'the court's authority conscientiously to adjudicate, undaunted by executive displeasure or other forms of pressure, is the subversion of the surest institutional guarantee of life, liberty and the pursuit of happiness. We agree broadly with the- learned Attorney General that where the first principle of ' justice to the community is contradicted by the continuance of the judge in a particular State, the, 'independence' principle will have to be harmonized with the cause of compelling public interest. Indeed, the independence of the judiciary is itself a necessitous desideratum of public interest and so interference with it is impermissible except where other considerations of public interest are so strong, and so exercised as 'not to militate seriously against the free flow of public justice. Such a balanced blend is the happy solution of a delicate, complex, subtle, yet challenging issue which bears on human rights and human justice. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rudely is to rob the Constitution of a vital bent servant but a constitutional functionary. He stands in a different category. He cannot be equated with other 'services' although for convenience certain rules applicable to the latter may, within limits. apply to the former. Imagine a judge's leave and pension being made precariously dependent on the Executive's pleasure. To make the government-not the State- the employer of a superior court judge is to unwrite the Constitution. To conclude: on this branch, we cannot tear off the text of Article 222 and put it under a microscope but must master the scheme and setting and describing the meaning beyond the political sunrises and sunsets of passing seasons. Indeed, the spiritual quiet and spiritual quest of the judges toils lies here. We may listen to Chief Justice Hidayatullah's chastening words One must, of course, take note of the synthesised authoritative content or the moral meaning of the underlying principle of the prescriptions of law, but not ignore the historic evolution of the law itself or how it was connected in its changing moods with the social requirements of a particular age. * Sri Seervai called ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tment, not transfer. From this it was sought to be inferred that a judge, on transfer, bad to be appointed to another High Court. A few more of such somewhat finical instances were picked out, and scanned at the micro-level to broad-base the theory that 'transfer' in the scheme of Chapter VI Part V covered only such shifts as were concurred in by the transferee. Having given close thought to the thesis, presented with an eye on 4 94 detail and woven into a fine web, we are not inclined to agree that the plain meaning of transfer under Article 222 can be whittled down in the manner suggested. To be subtle may not always be to be sound. The learned Attorney-General explained that Article 216 merely set out the constitution of the court as including the Chief Justice and such other judges as the President chose to appoint. The contradistinction between 'appoint' and 'transfer' did not arise in the, situation. Likewise, proviso (e) to Article 217 (1) covered two separate categories and two separate situations giving rise to vacancy in the Office of Judge of a High Court. The first was when a High Court judge was ap- pointed to the Supreme Court; the second was w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stage we may read and decode the concerned Article and deal with the matter in greater detail. 4 9 5 Article 222 of the Constitution runs thus Transfer of a Judge from one High Court to another (1) The President may, after consultation with the Chief Justice of India transfer a Judge from one High Court to another High Court. (2) When a Judge has been or is so transferred, he shall, during the period he serves, after the commencement of the Constitution (Fifteenth Amendment) Act, 1963, as a Judge of the other High Court, be entitled to receive in addition to his salary such compensatory allowance as may be determined by Parliament by law and, until so determined, such compensatory allowance as the President may by order fix. . The key words in this Article are 'consultation' mid 'transfer'. What is consultation, dictionary-wise and popular parlance-wise? It implies taking counsel, seeking advice. An element of deliberation together is also read into the concept. To consult is to apply to for guidance, direction or authentic information, to ask the advice of as to consult a lawyer; to discuss something together; to deliberate. Hewey v. Metropolitan Life Ins ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hinks will further the public interest, especially the cause of the justice system. However, consultation is different from consentaneity. They may discuss but may disagree; they may confer but may not concur. And in any case the consent of the Judge involved is not a factor specifically within the, range of Article 222. The expression 'transfer', as we have already indicated, in the context of service jurisprudence is not limited to consensual transfer. A. transfers B. when he has the power to shift him from one place to another or from one position to another. Intrinsically, in its transitive use, it does not imply the consent of the transferee. Of course, in appropriate cases such consent may be a justifiable course or desirable in the circumstances. We may visualise situations where seeking the consent of the potential transferee may be a self-defeating operation. We need not explore these aspects but may conclude that terminologically or in the spirit of the, provision, it is not right to insist that 'transfer' has, as one of its components the consent of the transferee or even of the Chief Justice of India. The risk of rejecting the mature and specialised c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice would become more or less powerless. In our opinion, the founding fathers of the Constitution could not have contemplated such a situation at all. That is why Article 222 was meant to take care of such contingencies. It was suggested by Mr, Seervai that if a Judge misbehaved, he could be impeached according to the provisions of the Constitution rather than transferred by way of punishment. This argument fails to consider the practical aspects of the matter. It is not every misbehavior or misconduct which may be sufficient to impeach a Judge and indeed it would be difficult to prove such misconduct or misbehaviour in the manner provided by the Constitution in a large variety of cases. Principled pragmatism is the soul of policy. The very fact that by withholding consent the Judge is in a position to reduce Article 222 to a dead letter so as to deprive it of potency, clearly shows that the Constitution-makers never intended to make redundant provisions. Viscount Simon, L.C. in the case of Nokes v. Doncaster Amalgamated Collieries Ltd. 1940 A.C. 1014 observed as follows : If the choice is between two interpretations, the narrower of which would fail to achieve the manifest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... compelled to joint or enter a particular service against his consent. In, these circumstances, therefore, appointment in the very nature of things implies express consent of the appointee. The same, cannot be said of a transfer after a person is appointed to a service because transfer is an incident of service. Once a person has entered service he is bound by the conditions imposed either by the, Service Rules or the Constitutional provisions. No, person after having joined the service can be heard to say that he shall not be transferred from one place to another in the same service without his consent. Having accepted the service the functionary has no choice left in the administrative action that can be taken by empowered authorities, namely, transfer from one place to another, assignment of work and Judge is appointed appear in the Constitution well before Article 222. A Judge of the High Court when be accepts an appointment is fully aware of Article 222 under which he can be transferred from one, High Court to another and if being fully conscious of Article, 222 he accepts the appointment as a Judge, of the High Court he cannot be heard to ,say that he cannot be transferred wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ations in the scheme of the Constitution itself to, show that a distinction is sought to, be made between appointment and transfer as pointed out above, and even the need to take consent, and when, was resent to, the mind of the makers of the Constitution. For instance, Article 224A is a provision for appointment of retired Judges. The proviso expressly enjoins that a Judge shall sit and act as a Judge of the High Court with his consent. The proviso to Article 224A runs thus:- provided that nothing in this Article shall be deemed to require any such person as aforesaid to sit and act as a Judge of that High Court unless he consents so to do. The reason for insisting on consent is that a retired Judge cannot be compelled to work as an ad hoc Judge against his consent because, after having retired from service he ceases to be a Judge of the High Court and is not bound by the conditions of service. On the other hand, in Article 127 which provides for appointment of a sitting Judge of the High Court to act as an ad hoc Judge of the Supreme Court, there is an express provision in the shape of clause (2) of Article 127 making it incumbent on the sitting Judges to attend the sitti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the High Court whereas in the case of High Court Judges it is vested in the executive authority, namely, the President acting on the advice of the Council of Ministers and thus if Article 222 could be utilised without the consent of the Judges when the Judges of the High Courts would be worse off than the members of the subordinate judiciary' This argument, though attractive, fails to take into consideration certain important factors. In the first place, in the case of the subordinate judiciary transfer being one of the usual incidents of the service and being a usual feature which has to take place, from time to time the power vests in the High Court. As already indicated, the power under Article 222 is to be exercised only exceptionally and in public interest; and where it becomes expedient and necessary in the public interest, especially of judicial administration, effective consultation with the Chief Justice of India, as a sine qua non, takes care of executive intrusions. Lastly, it was submitted that during the last 25 years the Government had itself interpreted Article 222 as implying consent and a large number of Judges who were transferred during this period were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e influence of administrative precedents and the explosive allergy to the plurality of transfers which are not before the Court, cannot be permitted to subjectify judicial construction to invite the comment 'Thy wish was father, .... to that thought'. Charity to the capacity of the illustrious dead whose learned toils and deliberate pens drafted Art. 222 behaves us not to stultify them in their silent graves by slurring over the express language interpretatively to invent a hidden veto power. The next point for consideration in this appeal is as to the nature, ambit and scope of consultation, as appearing in Art. 222(1) of the Constitution, with the Chief Justice of India. The consultation, in order to fulfil its normative function in Art. 222(1), must be a real, substantial and effective consultation based on full and proper materials placed before the Chief Justice by the Government. Before giving his opinion the Chief Justice of India would naturally take into consideration all relevant factors and may informally ascertain from the Judge concerned if he has any real personal difficulty or any humanitarian ground on which his transfer may not be directed.. Such grounds ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the matter, namely, the President and the Chief Justice of India. Of course, the Chief Justice has no power of veto, as Dr. Ambedkar explained in the Constituent Assembly. The dangers of arbitrary action or unsavoury exercise has been minimised by straight-jacketing of the power-of transfer. Likewise, the high legal risk of invalidation of any Presidential order made in the teeth of the Chief Justice's objection, runs in an added institutional protection. For it is reasonable for the court before which a Judge's transfer is challenged, to take a skeptic view and treat it as suspect if the Chief Justice's advice has been ignored. And, in the light of (1) [1970] SCR 666. (2) AIR 1974 SC 2192. 5 0 3 the protective responsibility lying on the shoulders of the Chief Justice in filling the bill as a constitutional consultant and the chance of successful challenge, if the consultation proves a futility from either end, the, judges of the High Court can enjoy all reasonable immunity. The monitoring mechanism will work well. And, where it does not, the Court, sitting in review of the action challenged (we hope these occasions will be rare and judicial demolition of presid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enerating the constitutional creed, has gained its object of getting the battle lines drawn clear and of delineation of the dharma concretising the zones of the President and the Chief Justice in the delicate function of transfer of High Court judges. Avoiding callous under-esti- mation and morbid exaggeration, we must realise that the independence of the judiciary is vital but is only an inset in the larger picture of the nation's free, forward march. UNTWALIA, J.-On or about the 27th May, 1976 about 16 Judges including some Chief Justices of the various High Courts were transferred by the President of India from one High Court to another. It is said that it was so done, after consultation with the Chief Justice of India. One of the Judges transferred was Shri Justice Sankalchand Himatlal Sheth, a Judge of the High Court of Gujarat. He was transferred to the High Court of Andhra Pradesh. The notification transferring him reads as follows In exercise of the powers conferred by clause (1) of, Article 222 of the Constitution of India, the President after consultation with the Chief Justice of India, is pleased to transfer Shri Justice Sankalchand Himatlal Sheth Judge of the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pted a similar course almost under similar circumstances. Lord Olanesburgh, in delivering the judgment of their Lordships, observed as follows at page 366 In his argument before the Board counsel for the respondent placed his view of the matter in the forefront of his argument and it was fully dealt with by Mr. Upjhon in his reply for the appellant. In these circumstances their Lordships think, that whether or not this appeal can be disposed of without further reference to it, they ought to express their views upon so important a question of practice now that it has been raised and fully argued. In such a matter certainty is more important than anything else. A rule of practice, even if it be statutory, can when found to be inconvenient be altered by competent authority. Uncertainty in such a matter is at best an embarrassment and may at its worst be a source of injustice which, in some cases, may be bound Judicial remedy. Accordingly, in this judgment, their Lordships will deal with all the matters in controversy to which they have referred, irrespective of the question whether the last of them of necessity now calls for determination at their hand . Broadly speaking, only two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may differ from him and for cogent reasons may take a contrary view. In other words, as held by this Court in the case of Chandramouleshwar Prasad v. Patna High Court Ors.(1) the advice is not binding on the Government invariably and as a matter of compulsion, in law. Although the decision of this Court in Chandramouleshwar Prasad's case was with reference, to the interpretation of Articles 233 and 235 of the Constitution, on principle there is hardly any difference. To invoke the principle of natural justice in the case of transfer of a Judge under Article 222(1) if otherwise it is permissible to make the transfer without his consent, will be, stretching the principle, to a breaking point. It will lead to many unpractical, anomalous and absurd results and will have inevitable repercussions in the order of transfers made in other branches of service either under the Union or the States. The only thing one may say is that it will be open to the Chief Justice of India, rather, he will be well- advised to do so, to make such inquiries and from such quarters as he may think, fit and proper to do in order to satisfy himself apropos the desirability, advisability and the necess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al for' deciding such cases of transfer may be necessary in order to maintain the independence of the judiciary. When an order of transfer is challenged by the Judge concerned in an appropriate legal proceeding tremendous difficulties will have to be faced in the matter of judging as to what extent the materials can be disclosed in court, how far the Government will be able to claim privilege from disclosure, how will be judged the truth or otherwise of the allegations made. At this stage I am not focussing my attention on these matters for the purpose of deciding any of the questions posed so far but I am doing so with the object of expressing my considered view on the question as to whether a transfer can be made without the consent of the Judge concerned or not. The purpose of national integration, if otherwise it is a good thing to be achieved, or the need of particular High Court for a Judge possessing a particular, type of proficiency or some such grounds of public interest can well be achieved at the time of the initial appointments; as for example, a member of the Bar practicing in a particular High Court may be, appointed at the, very threshold, if he so agrees to be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he minds of the Judges and others throughout the country and led them to suspect strongly that the orders of transfers were made by and large in cases of Judges who had shown exemplary courage and independence even during the period of emergency in delivering judgments which were not the liking of the men in authority, including the judgments in many MISA cases. I am not concerned to say here whether the judgments delivered were right or wrong. No body can say that a Judge is liable to be transferred. because he has delivered a wrong judgment. But one thing is certain'. and I again take courage to say so with the utmost responsibility that the panic created had shaken the very foundation and the structure of the independence of the judiciary throughout the country. In a democratic set up of our country, as enshrined in the Constitution, the judiciary, in one sense is not a structure of a very big magnitude, but surely it is like a watching tower above all the big structures of the other limbs of State. From the top of its respective towers, the highest judiciary either by it in the State or in the Centre keeps a watch like a sentinel on the functions of the other limbs of the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing into service the canons of interpretation laid down in some, of the cases viz., The River Wear Commissioners v. William Adamson([1876-77] 2A.C.743) and R. M. D. Chamarbaugwalla v. The Union of India([1957] S.C.R. 930). There are cases and cases, one line taking the view that no words may be added to or subtracted from the statute while interpreting it. If it has a plain and unambiguous meaning it must be adhered to,. If there is any ambiguity it may be resolved on principles well-known and fully established. There is another line of cases taking the view that the Courts should try to understand the real intention of the Legislature and the true meaning of the words used. In such cases the history of the legislation, its purpose, context and the object to be achieved were pressed into, service for interpreting it even though the words used in the statute were not ambiguous or uncertain. But I am of the view that this line of reasoning will not solve the difficulty of interpreting Article 222 in the manner suggested by Mr. Seervai. The key to the solution lies in the various Articles of the Constitution itself. It is of a different kind. That key has to be discovered and found ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt of each State . According to Article 216 Every High Court shall consist of a Chief Justice and such other Judges as the President may from time to time deem it necessary to appoint . Appointment and conditions of the office of a Judge of a High Court are provided for in Article 217 which clearly indicates that a qualified person is appointed as a Judge of particular High Court in a particular State at the threshold. He is entitled to hold office as a Judge of that High Court until he attains the age of 62 years. But this is subject to, three exceptions mentioned in the proviso appended to clause (1) of Article 217. Provisos (a) and (b) respectively deal with the resignation from the office of a Judge by his voluntary action and his removal from office in the manner provided in clause (4) of Article 124 as in the cases of the remove at of a Judge of the Supreme Court. Proviso (c) is important and is as follows : the office of a Judge shall be vacated by his being appointed by the President to be a Judge of the Supreme Court or by his being transferred by the President to any other High Court within the territory of India. Article 222(1) confers power on the President to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etc. it has been treated as a transfer of the Judge from the High Court to the Supreme Court for being appointed to the latter Court. The word transfer has been used in proviso (c) of Article 217(1) and Article 222(1) because the transfer is from one high Court to another as a high Court Judge and not to any superior Court. But yet the effect of the transfer is to make the Judge transferred to vacate his office of a Judge of the High Court from which he is transferred and to appoint him as a Judge of the High Court of another State. For the purpose of continuity of service, pension, travelling allowance etc., there, is hardly any difference between the case of appointment of a High Court Judge to the Supreme Court, and transfer to, another High Court. I may lend further support to the view expressed above, as rightly pointed out by Mr. Seervai, from the two matters in the Schedules to the Constitution. Clause, 1 1 (b) of Part D of the Second Schedule says Actual service includes-- (ii) joining time on from a High Court to the Supreme Court or from one High Court to another. It is plain that the joining time on transfer in both the cases will keep the Judge transferred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere are other AR India Services, such as in the Income Tax Department, in the Income Tax Appellate Tribunal, in the Customs Department etc. where the appointments are to the All India cadre in a particular service. In such a service orders of transfers are made transferring a particular officer from one place to another. ,In terms it does not require vacating his office of the post in a particular place, and assumption of it in another place in any prescribed form or special manner. The mere order of transfer brings about both the results. In the case of High Courts, however, they being the courts of record and the highest courts in the federal structure of our Constitution in their respective States, the founding- fathers adopted a different scheme. Although they made a departure in providing for transfer of a Judge from one High Court to another in Article 222 from the provisions of the Government of India Act, in substance, they did not do so, as they did not prescribe any mode for the transferred Judge acquiring his office of a Judge of the High Court to which he is transferred. The provision apparently conferring this bald power on the President seems to have been made just fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rne in mind that it is not intended to protect malicious and untruthful persons, but that it is intended to protect persons acting bona fide, who under different. rule would be liable, not perhaps to verdicts and judgments against them, but to the vexation of defending actions. Lord Pearce has quoted at page 269 a passage from the speech of Lord Earl of Halsbury, L.C., which- runs as follows It is very obvious that the public policy which renders the protection of witnesses necessary for the administration of justice must as a necessary consequence involve that which is a step towards and is part of the administration of justice namely, the preliminary examination of witnesses to find out what they can prove. It may be that to some extent it seems to impose a hardship, put after all the hardship is not to be compared with that which would arise if it were impossible to administer justice, because people would be afraid to give their testimony. I am not concerned to examine in the case whether the law in India in this regard is exactly the same or not but I felt tempted to quote those passages to show that there may be necessity and justification on the 'ground of publi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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