9911796707
TMI Blog1977 (9) TMI 115X X X X Extracts X X X X X X X X Extracts X X X X ..... following Opinions were delivered: CHANDRACHUD, J. This appeal by certificate involves the question as to the constitutionality of a notification issued by the President of India on May 27, 1976 which reads thus "In exercise of the powers conferred by clause (1) of Article 222 of the Constitution of India, the President after consultation with the Chief Justice of India, is pleased to transfer Shri Justice Sankalchand Himatlal Sheth, Judge of the High Court of Gujarat, as Judge of the High Court of Andhra Pradesh with effect from the date he assumes charge of his office." By, a foot-note, Justice Sheth was "requested to take charge of his duties in the Andhra Pradesh High Court Within four weeks from the date of issue" of the notification. The notification was issued by the Government of India in its Ministry of Law, Justice and Company Affairs, Department of Justice. Mr. Sheth complied with the Order of transfer and assumed charge of his office as a Judge of the Andhra Pradesh High Court but before doing so, he filed a writ petition, 911 of 1976, in the Gujarat High Court challenging the constitutional validity of the notification on the following grounds : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hout his consent. The third and fourth grounds were treated together by the learned Judges as two facets of the same contention and they held, unanimously, that there was no effective consultation with the Chief Justice of India. They arrived at this conclusion by different processes of reasoning into which it is unnecessary to go at this stage. J. B. Mehta J. voided the order of transfer on the ground that Mr. Sheth was "never consulted or informed of even the proposal of transfer as per the minimum requirement of natural justice and because it was not demonstrated .... by any material on record that there was effective consultation of the Chief Justice of India as required by the mandatory provision of Article 222(1)". A. D. Desai J. held that the order was unconstitutional because it was passed without Mr. Sheth's consent and secondly because it was passed "for a collateral purpose". The "discretionary power under article 222(1)" was, according to the learned Judge, exercised "arbitrarily and unreasonably". D.A. Desai J. considered the matter by formulating these questions : "Is the power of the President under Art. 222 unfettered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the power of transferring a Judge in the executive and therefore, the, transfer of High Court Judges from one High Court to another Without their consent is calculated to undermine the independence of the High Court Judges. In order to uphold the independence of the judiciary, which is a basic feature of the Constitution, the Court has not only the power but it is its plain duty to read into article, 222(1) a limitation which is not to be found on the face of that article. This argument is elaborated thus : (1) The transfer of a Judge, in many a case, inflicts personal injuries on him. For example, a Judge transferred from one High Court to another may have to maintain two establishments ; if his wife or unmarried daughter is gainfully employed, she may be required to give up the employment; the education of his children may suffer ; and above all, the transfer of a permanent Judge disables him from practising not only in the High Court to which he was initially 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 becaus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the amorphou s 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 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 harm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tation' comprehends, in order that such a safeguard may be real and effective. I will deal first with Mr. Seervai's contention that on a true construction of article 222(1) of the Constitution, a Judge of a High Court cannot be transferred without his consent. Since article 222(1) does not provide that such consent is necessary, the argument raises the question whether one can still read into that article words which are not to be found in it. Statutory interpretation, with conflicting rules pulling in different directions, has become a murky area and just as a case-law digest can supply an authority on almost any thinkable pro-position, so the new editions of old classics have collected over the years formulas which can fit in with any interpretation which one may choose to place. Perplexed by a bewildering mass of irreconcilable dogmas, courts have adopted and applied to, cases which come before them rules which reflect their own value judgments, making it increasingly difficult to define with precision the extent to which one may look beyond the actual words used by the legislature, for discovering the true legislative purpose or intent. "Traditional overemphasis o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat is true of the interpretation of an ordinary statute is not any the less true in the case of a constitutional provision, and the same rule applies equally to both. But if the words of an instrument are ambiguous in the sense that they can reasonably bear more than one meaning, that is to say, if the words are semantically ambiguous, or if a provision, if read literally, is patently incompatible with the other provisions of that instrument, the court would be justified in construing the words in a manner which will make the particular provision purposeful. That, in essence is the rule of harmonious construction. In M. Pentiah v. Veeramallappa(5) this Court observed : "Where the language of a statute, in its ordinary meaning and grammatical construction leads to, a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence...... But, if the provision is clear and explicit, it cannot be reduced to a nullity by reading into it a meaning which it does not carry and, therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s must be above reproach, free from coercion and from political influence".(1), Participating in the-debate on judicial provisions, Jawahar Lal Nehru said that is was important that the High Court Judges should not only be first-rate but should be of the highest integrity, "people who can stand up against the executive government, and whoever come in their way." Dr. Ambedkar, while winding up the debate on the judicial provisions, said that the question as regards the independence of the judiciary was "of the greatest importance" and that there could be no difference of opinion that the judiciary bad to be "independent of the executive" C.A.D. Vol. 8 p. 297. Having envisaged that the judiciary, which ought to act as a bastion of the rights and freedom of the people, must be immune from the influence and interference of the executive, the Constituent Assembly gave to that concept a concrete form by making various provisions to secure and safeguard the independence of the judiciary. Article 50 of the Constitution, which contains a Directive Principle of State Policy, provides that the State shall take steps to separate the judiciary from the execut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be prescribed by rules made by the Chief Justice of the Court or by some other Judge or officer of the Court authorised by the Chief Justice. Under clause (3), the administrative expenses of the High Court, including all salaries, allowances and pensions payable to or in respect of the officers and servants of the Court, are to be charged upon the Consolidated Fund of the State. These provisions, indisputably, are aimed at insulating the High Court judiciary, and even the officers and servants of the Court, from the influence of the executive. Not content with that, the framers of the Constitution introduced a fasciculus of articles in Chapter VI of Part VI of the Constitution, under the heading 'Subordinate Judiciary'. The provisions of Chapter VI, particularly articles 233(1) and 235, gave rise to a spate of litigation between the State executives and High Courts which had to be resolved by this Court by keeping in view the high purpose of the particular provisions. This Court held that the scope and ambit of control vested in the High Courts under article 235 covers the entire spectrum of administrative control and is not confined merely to general superintendence or t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reason or the other, has fallen from its grace. The executive possesses no such power under our Constitution and if it can be shown-though we see the difficulties in such showing that a transfer of a High Court Judge is made in a given case for an extraneous reason, the exercise of the power can appropriately be struck down as being vitiated by legal mala fides. The extraordinary power which the Constitution has conferred on the President by article 222(1) cannot be exercised in a manner which is 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i in R. M. D. Chamarbaugwalla v. Union of India(1), Attorney General v. Prince Ernest Augustus of Hanover(2) and The River Wear Commissioner v. William Adamson & Ors. (3). In Chamarbaugwalla's case (1) the constitutionality of sections 4 and 5 of the Prize Competitions Act and the rules made thereunder was challenged on the ground that the definition of 'prize competition' included not merely competitions of a gambling nature but also those in which success depended to a substantial degree on skill, thereby violating the petitioners' fundamental right to carry on business under article 19 (1 ) (g) of the Constitution. It was held by this Court that on a proper construction, the definition of 'prize competition' took in only such com- petitions as were of a gambling nature and no others. Venkatarama Ayyar J. delivering the judgment of the Constitution Bench, observed that on a literal construction of the definition it was difficult to resist the contention of the petitioners that the definition covered competitions which depend to a substantial degree on skill but the fact that the Court had to ascertain the intention of the legislature from the words actuall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf. It is also needless, in order to effectuate the object of the other constitutional provisions, to read any such limitation into that article,. Experience shows that there are cases, though fortunately they are few and far between, in which the exigencies of administration necessitate the transfer of a Judge from one High Court to another. The factious local atmosphere sometimes demands the drafting of a Judge or Chief Justice from another High Court and on the rarest of rare occasions which can be counted on the fingers of a hand, it becomes necessary to withdraw a Judge from a circle of favorites and non-favourites. The voice of compassion is heard depending upon who articulates it. Though transfers in such cases are preeminently in public interest, it will be impossible to achieve that purpose if a Judge cannot be transferred with out his consent. His personal interest may lie in continuing in a Court where his private interest will be served best, whereas, public interest may require that his moorings ought to be served to act as a reminder that "'the place of justice is a hallowed place". Mr. Seervai does see the possibility of such a need but he contends tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsideration is not relevant for our purpose since, in the view which I have taken, there is no questionhere of choosing between alternate evils. The construction whichI have placed upon article 222(1) would facilitate the transferof a High Court Judge in appropriate cases, without doing any damage to the provisions of the Constitution which are conceived in the interests of an independent judiciary. The last limb of Mr. Seervai's argument on the question of consent is that the transfer of a High Court Judge from one High Court lo another results in a fresh appointment of the Judge to the other High Court and since a person cannot be appointed as a Judge with,out his consent, the transfer cannot be made save With the- consent of the Judge. In support of this argument Mr. Seervai relies in the first place on the constitutional requirement that a Judge, upon being transferred to another High Court, has to take a fresh oath. It is ,quite correct that a Judge who is transferred to another High Court has to take a fresh oath before he assumes the charge of his office as a Judge of the High Court to which he is transferred. But that does not support the argument that he enters upon a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the Government of India Act provided that "the office of a Judge shall be vacated by his being appointed to be a Judge of the Federal Court or of another High Court". It is urged that since by the Government of India Act, appointments to the Federal Court were clubbed with the appointments to "another High Court" and since the Judge's consent was necessary in both cases, we should read the corresponding provision of the Constitution in clause (c) of the proviso to article 217(1) to mean that the process of transfer of a Judge from one High Court to another involves a fresh appointment. It is impossible to accept this contention. The Government of India Act did not contain any provision for the transfer of a Judge. That is why it provided that the office of a Judge shall be vacated either on the Judge being appointed to be a Judge of the Federal Court or on being appointed as a Judge of another High Court. If anything, the learned Attorney-General seems to me to be justified in relying upon the legislative history of the provision regarding (1) [1958] SCR 1422(at p.1478) 44 9 transfer in order to repel Mr. Seervai's submission. The, Government of In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 'actual service' to include "joining time on transfer from a High Court to the Supreme Court or from one High Court to another......... Clause 1 1 (b) (iii) of Part D of the Second Schedule to the Constitution contains an identical provision. The argument is that though it is unquestionable that a High Court Judge can only be appointed, not transferred, to the Supreme Court, still these provisions equate 'transfer' with 'appointment' and therefore the two expressions are used to convey the same meaning and are accordingly interchangeable. I do not think that by reason of these provisions the two expressions, transfer and appointment, can be taken to mean one and the same thing. The provisions on which counsel relies pertain to the conditions of service of High Court Judges of which the intendment is that as in the case of a High Court Judge transferred to another High Court, so in the case of a High Court Judge appointed to the Supreme Court, actual service should include the joining time, as if the Judge is transferred to another Court. Such technical rules of procedure 5-930SCI/77 governing service conditions cannot affect the interpretation of a su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t work the servant is to do, but also the manner in which the work is to be done (see Halsbury's Laws of England, Third Edition, Volume 25, page 447, para 871 and the cases cited in foot- note b). A servant undertakes to serve his master and to obey his reasonable orders within the scope of the duty Undertaken. The Government has no power or authority to direct what particular work a High Court Judge must do and it can certainly not regulate the manner in which he must do his work in the discharge of his official functions. A High Court Judge is also not bound, nor does he undertake, to obey an order of the Government within the scope of his duties. Judges, of the High Court owe their appointment to the Constitution and hold a position of privilege under it. Their tenure is guaranteed by article 217 (1 ) until they attain the age of 62.Their salary is protected by article 221 (1). They are entitled by 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... article 124(2) requires that in the case of appointment of a Judge other, than the Chief Justice, "the Chief Justice of India shall always be consulted". Article 217(1) provides that every Judge of a High Court shall be appointed by the President by warrant under his hand and seal, "after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court". By article 222(1), which is directly in issue, "The President may, after consultation with the Chief Justice of India, transfer a Judge from one High Court to any other High Court". 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other words, the transfer of a High Court Judge to another High Court cannot become effective unless the Chief Justice of India is consulted by the President in behalf of the proposed transfer. Indeed, it is euphemistic to talk in terms of effectiveness, because the transfer of a High Court Judge to another High Court is unconstitutional unless, before transferring the Judge, the President consults the Chief Justice of India. So far there is no difficulty, because it is nobody's case that the President can transfer a High Court Judge without consulting the Chief Justice of India. Consultation then being obligatory, the question which arises for consideration is what exactly does the President have 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9; is frequently defined as meaning 'to discuss something together, or to deliberate'. Quoting Rollo v. Minister of Town and Country Planning([1948] 1 All E.R. 13 C.A) and Fletcher v. Minister of Town and Country Planning([1947] 2 All E.R. 946) Stroud's Judicial Dictionary (Volume 1' Third Edition, 1952, page 596) says in the context of the expression " consultation with any local authorities" that "Consultation means 4 54 that, on the one side, the Minister must supply sufficient information to the local authority to enable them to tender advice, and, on the other hand, a sufficient opportunity must be given to the local authority to tender advice". Thus, deliberation is the quintessence of consultation. That implies that each individual case must be considered separately on the basis of its own facts. Policy transfers on a wholesale basis which leave no scope for considering the facts of each particular case and which are influenced by one-sided governmental considerations are outside the contemplation of our Constitution. It may not be a happy analogy, but it is common sense that he who wants to 'consult' a doctor cannot keep facts u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 cannot be said to have been issued after consultation." (pages 674-675). This then, in my judgment, is the true meaning and content of consultation as envisaged by article 222(1) of the Constitution. After an effective consultation with the Chief Justice of India, it is open to the President to arrive at a proper decision of the question whether a Judge should be transferred to another High Court because, what the Constitution requires is consultation with the Chief Justice, not his concurrence with the proposed transfer. But it is necessary to reiterate what Bhagwati and Krishna Iyer JJ. said in Shamsher Singh (supra) that in all conceivable cases, consultation with the Chief Justice of India should be accepted by the Government of India and that the Court will have an opportunity to examine if any other extraneous circumstances have entered into the verdict of the executive if it departs from the counsel given by the Chief Justice of India. "In practice the last word in such a sensitive subject must belong to tile Chief Justice of India, the rejection of his advice being ordinarily regarded as prompted by oblique considerations vitiating the order." (page 873). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and fairness demands an opportunity at least to know and meet the charge : "Absolute discretion, like corruption, marks tile beginning of the end of liberty."(1) Article 222(1) postulates fair play and contains built-in safeguards in the interests of reasonableness. In the first place, the power to transfer a High Court Judge can be exercised in public interest only. Secondly, the President is under an obligation to consult the Chief Justice of India which means and requires that all the relevant facts must be placed before the Chief Justice. Thirdly, the Chief Justice owes a corresponding duty, both to the President and to the Judge who, is proposed to be transferred, that he shall consider every relevant fact before he tenders his opinion to the President. In the discharge, of this constitutional. obligation, the Chief Justice would be within his rights, and indeed it is his duty whenever necessary, to elicit and ascertain further facts either directly from the Judge concerned or from other reliable sources. The executive cannot and ought not to establish rapport with the Judges which is, the function and privilege of the Chief Justice. In substance and effect, therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat are its basic essentials ? These are the questions that arise for determination in this appeal and they have been argued before us with great passion and fervor, not ordinarily seen in humdrum and routine cases, since they admittedly raise issues of the gravest character affecting the independence of the judiciary which is one of the cardinal features of our Constitution sustaining the rule of law and infusing it with life and meaning. The decision of these questions may not be strictly necessary for. disposing of this appeal, since at the close of the arguments an agreed formula was put forward on behalf of the parties and in pursuance of this formula, the first respondent withdrew his petition, but having regard to the great constitutional importance of these questions, I think the Court ought to express its opinion upon them, now that they have been raised and fully argued before us. The first respondent Mr. Justice S. H. Sheth, who was a Judge of the Gujarat High Court 'since 23rd April, 1969, was, by a Presidential Order dated 27th May, 1976, transferred "as Judge of the High Court of Andhra Pradesh with effect from the date he assumes charge of his office". ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g was adjourned to 7th September, 1976. On the adjourned date Mr. Raman was not present, but the junior counsel stated that the Government of India was pressing the objection, to which an answer was made on behalf of the 1st respondent that the objection could not be entertained as it was not put in writing and it was not disclosed as to what was the source of knowledge of the Government of India in regard to the correspondence supposed to have taken place between the Judges of the Gujarat High Court and the Chief Justice of India. Since it was stated on behalf of the Government of India in the course of the arguments that it had no knowledge of the contents of this correspondence, the Special Bench adjourned the hearing of the case and on 10th September, 1976 made an order stating that though the letter addressed by the Judges of the High Court, including, the members of the Special Bench,-to the Chief Justice of India was a highly confidential communication, they and their colleagues who, were signatories to that letter, had no objection if the Chief Justice of India, who was the addressee of the letter, desired to produce it. The privilege of confidentiality was thus, in all fai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not be able to do justice between the 1st respondent and the Government of India "without fear or favour" or to use the words of Edmund Burke, adopt the "cold neutrality of an impartial Judge", they would have themselves declined to hear the petition. The objection raised by the Government of India amounted to nothing short of a suggestion that it did not have confidence in the impartiality of its own judges. Moreover, the Act of the Government of India was all the more reprehensible because the objection raised by it was based on the most flimsy and tenuous material which it would not have required a moment's hesitation to dismiss as unworthy of consideration. The objection was based solely on the letter addressed by some or the judges of the High Court to the Chief Justice of India which, according to the Government of India, it had not seen and of the contents of which, it was admittedly not aware. It is difficult to appreciate how even without knowing what were the contents of this letter, the Government of India could raise an objection on the basis of such letter. It was to my mind an act of impropriety on the part of the Government of India. It woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t respondent was by way of punishment for a judgment delivered by him against the Government and was not in public interest for which alone an order of transfer could be made by the President under Article 222, cl. (1), but this contention too was not pressed before us on behalf of the 1st respondent as a ground for invalidating the order of transfer and it is, therefore, not necessary to consider it. One thing is, however, certain that the power to transfer a Judge from one High Court to another under Art. 222, clause (1) can be exercised only in public interest and it would be gross abuse of power to displace him from his High Court and transfer him to another High Court by way of punishment because he has decided cases against the Government. It is a power conferred on the President to be exercised in furtherance of public interest and not by way of victimisation for inconvenient decisions given by a High Court Judge. Here, on the record, it does appear that the transfer of the 1st respondent was punitive in character and was not prompted by considerations of public interest. It was admitted by part of mass transfers of 16 High Court Judges and though a suggestion was made by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . D. Desai held that, on a true construction of Art., 222, cl. (1), a High Court Judge could not be transferred without his consent and since in, the present case the transfer of the 1st respondent was admitted without his consent, the order of transfer was invalid. Mr. Justice J. B. Mehta and Mr. Justice D. A. Desai, on the other hand, took a different view and observed that the necessity of consent could not be implied in Art. 222, cl. (1) and want of consent on the part of the 1st respondent did not have the effect of invalidating the order of transfer against him. All the three Judges were, however, agreed in regard to ground (ii) and they held that effective consultation with the Chief Justice of India was a condition precedent to the exercise of the power to pass an order of transfer under Art. 222, cl. (1) and since there was no material on record to show that there was such effective consultation with the Chief Justice of India, the condition precedent was not satisfied and the order of transfer was bad. The Special Bench, on this view, allowed the petition and struck down the order of transfer as invalid. This order of the Special Bench is challenged in the present appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and judgment perform the duties of.my office without fear and favour, affection or illwill." It may be pointed here that the words "without fear or favour". which ,are to be found in the present Form of oath in Form VIII did not figure in the form of oath prescribed in Schedule IV to the Government of India Act, 1935 and they were an addition made by the Constitution. These words, of course, do not add anything to the nature of the judicial function to be discharged by the High Court Judge because, even without them, the High Court Judge would, by the very nature of the judicial function, have to perform the duties of his office without fear or favour, but they serve to highlight two basic characteristics of the judicial function, namely, independence and impartiality. Two propositions clearly emerge on a consideration of these 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, b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld tenure at the pleasure of the Crown and the Sovereign could dismiss a Judge at his discretion, if the judge did not deliver judgments to his liking. No less illustrious a judge then Lord Coke was dismissed by Charles I for his glorious and courageous refusal to obey the King's writ de non Procedendo rago inconsulto contending him to step or to delay pro- ceedings in his court. The Act of Settlement, 1688 put it out of the power of the Sovereign to dismiss a judge at pleasure by substituting 'tenure during good behaviour' for 'tenure at pleasure,. The Judge could then say, as did Lord Bowen so eloquently : "These are not days in which any English Judge will fail to assert his right to rise in the proud consciousness that justice is administered in the realms of Her Majesty the 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 Eng ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iament ,and it is put out of the power of Parliament to refuse to vote pension and thus hold out a threat of injury to a High Court Judge. Further, under Article 221, clause (2) it is provided that "neither the allowances of a Judge nor his rights in respect of leave of absence or pension shall be varied to his disadvantage after his appointment". Then there is Article 211 which prohibits any discussion in the Legislature, of a State with respect to the conduct of a Judge of a High Court in the discharge, of his duties. The High Court Judge is insulated from fear of criticism of his judicial acts by the Legislature which is essentially a political assembly. This would enable a High Court Judge to act fearlessly in administering Justice in the discharge of 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 observe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciplinary control as well, the very object would be frustrated" and held that disciplinary jurisdiction is comprehended within the broad sweep of 'control' vested in the High Court under Article 235 and hence the High Court alone has disciplinary control over the, Subordinate Judiciary. Then again, in the State of Assam v. Ranga Mahmmad & Ors.,(1) a question arose whether transfer of a District Judge is within the exclusive power of the High Court or the State Government is entitled to make such transfer. The determination of this question depended upon the true meaning of the word 'posting' in Article 233. Does 'posting' Mean stationing a person at a place so as to include transfer or is it limited only to initial posting on 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fix." There was an original clause (2) in Article 222 which was in almost identical terms. It was omitted by the Constitution (Seventh Amendment) Act, 1956 but it was again introduced in its present form by the Constitution (Fifteenth Amendment) Act, 1963. It provides for payment of compensatory allowance to a Judge who has been transferred from one High Court to another. This clause has no material bearing on the controversy in the present appeal, but it does postulate that transfer of a High Court Judge would inflict an injury on him for which, in all fairness, compensatory allowance should be paid to him. Now, according to the plain natural meaning of the words used in clause (1), it does appear that the only limitation on the exercise of the power of the President to transfer a Judge from one High Court to another is that there must be previous consultation with the Chief Justice of India and there is no explicit requirement that the transfer may be made by the President only with the consent of the Judge. But the question is : can the requirement of consent be read into this clause by necessary implication ? That would depend on the interpretation of the language of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary, but to remember that a statute always has some purpose or object to accomplish, whose sympathetic and imaginative discovery, is the surest guide to its meaning. The literal construction should not obsess the Court, because it has only prima facie preference, the real object of interpretation being to find out the true instant of the law maker and that can be done only by reading the statute as an organic whole, with each part throwing light on the other and bearing in mind the rule in Heydon's case(2) which requires four things to be "discerned and considered" in arriving at the real meaning : (1) what was the law before the Act was passed; (2) what was the mischief or defect for which the law had not provided; (3) what remedy Parliament has appointed; and (4) the reason of the remedy. There is also another rule of interpretation which is equally well settled and which seems to follow as a necessary corollary, namely, where the words, according to their literal meaning-"produce an inconsistency, or an absurdity or inconvenience so great as to convince the Court that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso vary from State to State and the State to which the Judge is transferred might not have the same quality of medical services as his home State. So also the climate of the other State might not agree with the health of the Judge and he might be put to great hardship and hazard, as for example, where a Judge who is not accustomed to severe cold is transferred to the High Court of Jammu & Kashmir or to the High Court of Himachal Pradesh, or a Judge who is vulnerable to humid climate is sent to the Calcutta High Court or to the High Court of Assam. If the Judge's wife is engaged in a full time or part time employment in the State, his transfer to another State might require the wife to give up her employment or the husband to stay apart from his wife at least for nine months in a year and the same would be true if the wife has set up or inherited a business. Furthermore, the transfer would inflict an additional disability on the Judge, in that, he would be disabled from practicing not only in the High Court to which he was originally appointed, but also in the High Court to which he is transferred so that repeated transfers might prevent him from practising in a number of High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ff High Court. It must be remembered that though, by and large, our Judges (and their number, I am sure, is quite large) are made of sterner stuff and no threat of injury, however grave or serious, would deflect them from doing their duty "without fear or favour", some judges may, on account of threat of transfer, be induced, albeit not consciously or deliberately, to do that which pleases the executive to avert such injury, and if they are competent and skilled in judicial craftsmanship, it would not be difficult for them to find arguments to justify their action in falling in line with the wishes of the executive, because reason is a ready-enough advocate for the decision, one, consciously or unconsciously, desire to reach. One may recall the brilliant fling of Shri Aurobindo in his epic poem 'Savitri' "An inconclusive play is Reasoin's toil; Each strong idea can use her as its tool; Accepting every brief she pleads her case. Open to every thought she cannot know." This would not only have a demoralising effect on the High Court judiciary, but it would also shake the confidence of the people in the administration of justice in cases where the Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ree to inflict injury on a High Court Judge by transferring him without his consent and there would be no effective check on the exercise of such power by the executive. Of course, it is a basic prin- ciple of law that every power conferred by a statute must be exercised reasonably with a view to effectuating the purpose for which the power is conferred and the power of transfer conferred on the executive can be exercised only in public interest to advance the cause of administration of justice and consequently, if the transfer of a High Court is made for a collateral or improper purpose which does not subserve the interest of administration of justice, it can be struck down as in-valid at the instance of the Judge who is transferred, but this remedy would be meaningless and futile, because it would be almost impossible for the High Court Judge to take legal proceedings for challenging the transfer aid even if he takes such proceedings, it would be very difficult for him to establish that the transfer is prompted by a collateral or improper purpose and is not in public interest. The net result would be that the High Court-Judge would be without any effective remedy and he would hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he High Court in order to insulate them from improper executive pressure, while the transfer of High Court Judges, for whose independence most elaborate provisions have been made in the Constitution, should be left in the hands of the executive. It is impossible to imagine that the Subordinate Judiciary should have been intended to be Protected from executive interference or pressure but not the, High Court Judiciary. If the anxiety of the constitution-makers was to secure the independence. of the Subordinate Judiciary by putting it out of the power of the executive to transfer a Subordinate Judge, it can safely be presumed that they were equally, if not more, solicitous to safeguard the independence of the High Court Judiciary and they could not have intended to leave to the executive the power to transfer a High Court Judge without his consent. It is no doubt true that the words "without his consent" are not to be found in clause (1) of Article 222, but the word 'transfer' which is used there is a natural word which can mean consensual as well as compulsory transfer and if the High and noble purpose of the Constitution to secure that independence of the Superior ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the relevant constitutional provisions. It may be noticed that the basic postulate underlying these constitutional provisions is that a person is appointed as a judge of a particular High Court and not a High Court judge simpliciter. There is no All-India cadre of High Court judges. When a person is appointed a 'Judge of a particular High Court, he has to make or subscribe an oath or affirmation before the Governor of the State and then only he assumes charge of his office and becomes a Judge of that High Court. He is then entitled to continue to occupy the office of Judge of that High Court until he attains the age of 62 years, subject to three provisos, of which the first two, which provide for resignation and removal, are immaterial and the third is that his office shall be vacated by his "being appointed by the President to be a Judge of the Supreme Court or his being transferred by the President to any other High Court within the territory 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 off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s soon as an order of transfer is made and before he makes or subscribes an oath or affirmation before the Governor of the State and assumes charge of his office as Judge of the High Court to which he is transferred. That would bring about a hiatus in service which could never have been contemplated by the constitution-makers. The act of assumption of office of Judge of the High Court to which the transfer is made must necessarily be simultaneous in point of time with the act of vacating the office of Judge of the High Court from where the transfer is made. In fact, the latter event completes the process of transfer and produces the former consequence. It may also be noted that though proviso (c) to clause (1) of Article 217 speaks of the office of Judge of a High Court being vacated by his being appointed to be a Judge of the Supreme Court, clause (II) (b) of the Second Schedule refers to such appointment as "transfer from a High Court to the Supreme Court". This clearly shows that the word 'transfer' is used by the constitution-makers in the mechanical sense of going from one post to another and not in the sense, in which it is ordinarily used where there is tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s puisne Judges. Then a question was posed on behalf of the Government as to why was it necessary at all to enact a provision like cl. (1) of Article 222, if transfer under it could be made only with the consent of the Judge. But the answer to this question is simple : a judge appointed to a particular High Court could not be transferred to another High Court even with his consent, unless there was a constitutional provision authorising such transfer and hence this provision had to he enacted in clause (1) of Article 222. Moreover, consultation with the Chief Justice of India was intended to ensure, as far as possible, that the executive should not be able to show favour to a High Court Judge by transferring him, of course with his consent which might be readily given, to a bigger or 'more convenient High 'Court or to a High Court where prospects of judicial preferment might be brighter for the Judge.. It would be as much destructive of judicial independence to allow the executive to hold out blandishment or show favour to a High Court Judge as to put it within the power of the executive to inflict injury on him and consultation with the Chief Justice of India was intended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is necessary to put up with that evil in order to secure the larger good which flows from the independence of the judiciary. I cannot accept a construction which sacrifices the independence of the judiciary in order that it should be possible to transfer a few undesirable judges. The relative benefit to the public interest by transferring a few unworthy incumbents of the office of High Court Judgeship is insignificant compared to the injury to the, public interest of the people of India in the independent administration of justice. The public interest in the independence of the judiciary must, therefore, clearly prevail and a construction which subserves this higher public interest must be accepted. The judgment, of the court in constitutional issues is essentially a value-judgment and it has to balance competing values and choose between them, having regard to the comparative importance or value of the public interest that will thereby be promoted or impaired. The constitution makers have declared in no uncertain terms that one of the most' fundamental public interests shall be fearless justice by an independent judiciary and that public interest must determine the choice o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rits and decide whether the transfer should be made or not and where such provision is made, the consent of the Judge may be specifically dispensed with. That takes me to the next question as to what is the nature and content of "consultation with the Chief Justice of India" which is an essential prerequisite before exercising the power of transfer under cl. (1) of Art. 222. On this question, I find myself so entirely in agreement with what has been said by my learned brother Krishna lyer in his judgment that I do not think I can usefully add anything to it. I wholly endorse what he has said on this point and hold that unless there is previous consultation with the Chief Justice of India of the kind indicated by him in his judgment, the exercise of the power of transfer would be invalid. This brings me to the close of my judgment. It is not necessary to work out the final order in the case in accordance with the view taken in the judgment in regard to the two points raised before us, since as already pointed out in the beginning of the judgment, the parties settled the matter between them after the arguments were ended and we accordingly passed an order on August 26, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the framers of a Constitution, but while on statutory construction of an organic document regulating and coordinating the- relations among instrumentalities, the highest Court must remember that law, including the suprema lex, is a principled, pragmatic, holistic recipe for the behavioural needs and norms of life in the raw-of individuals, instrumentalities and the play of power and freedom. We strike, these deeper prefatory notes since the authorities involved are the President of India, symbolizing the executive power of the Union (virtually vested in the Cabinet), the Chief Justice of India who is, in a way, the head of the Indian Justice System and repository of certain strategic functions in the operation of the constitutional complex-of checks and balances, and a Judge of a High Court, the victim of alleged abuse of 'transfer' power and bearer of the cross for the higher judiciary. The turn for similar 'transferal' treatment may come tomorrow for others too unless the constitutional calculus is authoritatively spelt out by this Court under Article 141. The pathology of power may unpredictably show up unless correctional vigilance makes its constant curial pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ior branch of the State in the important field of justice is a social philosophy, acceptance of which may involve many changes in the way judges at various levels are dealt with vis-a-vis comparable categories in the executive branch including Ministers. Of course, we should make it clear that no claim to be an imperious in imperil can be extended to the judiciary or, for that matter, to any other instrumentality under the Constitution. Nor should Judges be independent of broad accountability to the nation and its indigent and injustice-ridden millions. Moreover, the judicial branch has a responsibility, within its allotted sphere, for the fulfilment of the social, economic and political pledge registered in the Constitution which "We, the People of India" expect to be redeemed. Professor Friedman stated the correct position : "In the modem democratic society the Judge must steer his way between the scylla of subservience to Government and the charydis of remoteness from constantly changing social pressures and economic needs.-Law in a Changing Society (W. Friedmann)." The wider amplitude and profound implications of judicial independence may have to be expati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been unsuccessfully urged by him before the High Court. He also stated that the ground of natural justice having been breached, in the sense that the proposal for transfer and the grounds thereof should have been put to the judge concerned, was being abandoned by him although he staked his case on a taller contention that transfer of judges without their consent was unconstitutional. The surviving submissions alone need be itemised. The first emphatic argument of Shri Seervai, which had been concurrently negatived at the High Court level by all the judges on the Full Bench, is that a proper construction of Article 222(1), having realistic regard to the setting and scheme of the Constitution, leads necessarily to the conclusion that 'consultation' with the Chief Justice of India has, as its inescapable component, the securing of the transferee judge's consent to the transfer. The second submission, which led to an equally serious debate at the bar, turned on the textual connotation and contextual content of 'transfer' the meaning, measure and materiality of the expression , consolation', the pertinence and impertinence of considerations governing the exerci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive construction on a spinal provision with impact on the basics of our constitutional dynamics, it may shake or shape the executive/judicative equation, catalyze the constitutional checks and balances and canalyze the free flow of justice. And, if this Court quails or fails, the nation, in the short run or long run, travails. We must state, in considering the conditions of service of traditions the best nor colonial legacies lustrous, as American and Swiss experiences for instance show. Again, what worked well for half a century may work ill later. The point is that some grounds which appeal to the President as of high pertinence and priority may be allergic to some judges or statesmen; but in a pluralist society, afflicted with medieval cleavages and modern cravings, striving to develop rapidly into a vibrant democracy, the scale of values and the meaning of meanings may vary; and governmental radicalism, if any, needed for socioeconomic justice to the millions or subduing divisiveness in the nation may not be voided by judicial review of State policy on the score of unpalatable unconventionality. Some of the thought processes bearing on relevance and irrelevance of consideratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interference, it may be said, as was done by counsel on both sides in this case, that the inviolability of judicial freedom is an obvious value, at once sacred and strategic, but the words of Oliver Wendell Holmes cannot be lost on us : "It is sometimes more important to emphasize the obvious than to elucidate the obscure." We straight go into statutory construction which is- of great moment. Article 222 is not the only provision-where 'consultation is obligated with reference to the judiciary by the Constitution. For example, the appointment of judges of the Supreme Court involves the constitutional necessity of 'consultation' as stipulated in Article 124; so also the appointment of judges of High Courts (Article 217). Coming further down to the subordinate judiciary-indeed, the common man is more concerned as consumer of equal justice at the hands of the local courts of the country-Article 233 mandates 'Consultation by the Governor of the State with the High Court concerned. We do not seek to be exhaustive but exemplify that the, independence-imperative vis-a-vis the courts is effectuated by the consultative component in any decision seriously affectin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court judges are charged on the Consolidated Fund of India : Art. 112 (3) (d) (iii) [Sec. 33 (3) (d), G.I. Act, 351 so that under Article 113 (3) such pensions are not subject to the vote of Parliament. [sec. 34 (1), G.I. Act, 35]. Further. under Article 221 (2), "neither the allowance of a judge nor his rights in respect of leave of absence or pension are to be varied to his disadvantage after his appointment" [See 221, proviso, G.I. Act, 35] Since the salaries payable to the judges are prescribed by Schedule 11 of the Constitution, they could not be varied without an amendment of the Constitution. (d) Article 211 prohibits any discussion in the Legislature of a State with respect to the conduct of any judge of the Supreme Court or of a High Court in the discharge of his duties (Emphasis supplied) : [Sec. 40 (1), G.I. Act, 35] (e) Article 215 confer upon the High Court a power to punish for contempt of itself. (f) The provisions of Article 211 show that the judges are protected from criticism of their judicial acts from the Legislature, which is a political assembly, and the provisions of Article 215 show that the High Court has power to protect itself against interf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) (ii) of Article 233A." These muniments highlight the concern of the founding fathers for judicial insulation, a sort of Monroe doctrine. Against this background we must read Article 222. The doctrinal basis is clear. Are the words also clear ? If yes, no difficulty presents itself, if no, actual legislative history and accepted constitutional theory, it is con-tended, may form part of extrinsic aid, as a tool to remove ambiguity. This plunges us into the problematics of constitutional interpretation. The detailed debate at the bar on canons of statutory construction persuades us to essay a consideration of their essentials to the extent necessary here. It is neither an illogical nor a starting proposition that one of the components of understanding and interpretation in law as in art is the content within and without the Act or work in which the particular words in question appear. British judicial thinking is reflected in many rulings one of which may be referred to here. Viscount Simonds in Attorney- General v. Prince-Ernest. Augustus of Hanover (1957 AC 436) stated at p. 461 : "For words, and particularly general words, cannot be read in isolation : their colour a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om and relation to other terms', adds : "This statement is not contradicted by the fact that all familiar words carry some meaning even when uttered in isolation........ (T)heir meaning is potential rather than actual until they are linked to other words. If the words sun, parabola, Julius Caesar, etc., are uttered, a line of direction is given to observation or discourse. But, the objective of the direction is indeterminate until it is distinguished from alternative possible terminations, and is thus identified by means of relation to another term." (J.Dewey, Logic : The Theory of Inquiry 349 (1938) Emphasis in original). (p. 50, Dickerson) As Allen points out, words are meaningless in isolation although it may be offset by a footnote thought that even when read out of specific context, particular words and phrases retain much of the flavour of their usual associations. In view of these divergences 'it is a delicate business to base speculations about the purpose or construction of a statute upon the vicissitudes of its passage. (Holmes J in Pine Hill Coal Co. v. United States : 259 U.S. 191, 196). Even so, we agree with the emphasis laid by Shri Seervai on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... old imperative to students : "(1) Read the statute; (2) Read the statute, (3) Read the statute" Attributed to H Friendly Benchmarks 202 (1967- Dickerson, p. 217). We have said enough to indicated that an attempt to be exhaustive about the canons of interpretation and application of statutes is a journey through a jungle. Nevertheless, while understanding and interpreting a statute, a fortitude a constitutional code,, the roots of the past, the foliage of the present and the seeds of the future. must be within the ken of the activist judge. Curtis has contended that, consistently with the ascertained meaning of the statute, a court should be able, to shake off the dust of the past and plant its feet firmly in the present ".....The legislature which passed the statute has adjourned and its members gone home to their constituents or to a long rest from all law-making. So why bother about what they intended or what they would have done ? Better the prophetic than archaeological, better deal with the future than with the past, better pay a decent respect for a future legislature than stand in awe of one that has folded up its 4 88 papers and joined friends at the countr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge, if we please, as the task of a translator, the reading of signs and symbols given from without. None the less we will not be set men to such a task, unless they have absorbed the spirit, and have filled themselves with a love, of the language they must read." (The Nature of the Judicial Process : Yale University Press) To set the record straight we must reiterate what Craies has stated ,with classical purity "If the words of the statute are themselves precise and unambiguous, then no more can be necessary than to expound those words in their ordinary and natural sense. The words themselves alone do in such a case best declare the intention of the lawgiver. Where the language of an Act is clear and explicit, we must give effect to it, whatever may be the consequences, for in that case the words of the statute speak the intention of the legislature". (Statute Law 6th Edition, p. 66) Our basic task now is simplified because the issues and themes that have fallen for discussion demand an application to the concrete situation of 'the general principles bearing on statutory construction we, have put down in variegated coleus. But, before that, in the spirit of wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the parliamentary model of the Westminster type, the legislature often accepts the lead of the Council of Ministers. Naturally, the two branches of the State so intertwined may present a concentration of power the use of which has to be carefully monitored so that justice to the citizen as against the State, justice to the State as against the Union and justice to the community where men in high office are arraigned, may not fail in court. The confidence- of the people in the fearless, flawless administration of justice is of a supreme importance for the survival of democracy and the progress of the nation. We now, move on to the doctrinal debate. and a valid resolution of the rival views. The spiritual value of a free judiciary for a civilised human order is symbolised in the imperative Fiat Justicia and inscribed in ancient Indian Neeti Shastras. To us of a constitutional culture rooted in the supremacy of justice-social, economic and political-and subjected to colonial injustice before we became free, independence of the judiciary is no speculative nicety nor sweet novelty but a dear creed to defend, liberty. But this noble precept must be perceived as part of and not paramoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esultant is an outlook on life, a conception of social needs a sense, in James' phrase, of 'the total push and pressure of the cosmos' which, when reasons are nicely balanced, must determine where the choice shall fall." (Nature of the Judicial Process, p. 12) This divagatory discussion is, in a sense, fundamental to the resolution of the conflict between the broader presentation of the problem by the learned Attorney General and the relentless philosophical insistence of Sree Seervai. Why ? Executive interference is one menace. Judicial prepossessions and prejudices wearing liberal masks, may be another. Mob and media hysteria can be a third The Roman Emperor did not dictate the injustice of crucifixion which Pontius Pilate decreed. Nor was the Dred Scott decision, which dehumanised the black millions, the product of unfree justices. And yet, history has pronounced with blood these independent judges guilty. The truth is that at a time of Hamlet's choice of "To be or not to be" for hundreds of millions of Indian humans, independent justice has a paramount 'public interest' connotation. Within this larger framework of common-weal, and conduc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se, to, outgrow his prejudices and weaknesses, to read the eternal verities and enduring values and to project and promote the economic, political and social philosophy of the Constitution to uphold which his oath enjoins him. But it is sense to treat the person who wears the robes as human, with failings and falterings and affected by the 'total push and pressure of the cosmos'. And so, environmental protection of the judicial echelons from Executive influence, by transfer or other deterrent, is in public interest. But to promote the community's concern for impeccable litigating justice, policy-oriented transfer of judges after compliance with constitutionally spelt-out protocols may not be ruled out. It was right of Sri Seervai to have spread the canvas wide since the appreciation of this pivotal issue of the judge's matier and methods demands acceptance of the broader bearings and constitutional culture. We here construe riot merely Article 222 but lay down the larger law of the Constitution. We must first understand that judges have, been assigned, by the supreme lex, an independent sentinel's duty. To defeat this role subtly or crudely is to rob the Constit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s concept attempt was made to bring in the component of 'appointment' in every 'transfer'. Article 216 was-pressed into service to make out that a High Court consisted of a Chief Justice and only such other judges as were appointed. Therefore, if a transferee judge was to become part of the High Court he bad to be appointed. Article 217 was read to suggest with special reference to proviso (e) to Article 217(1) that even as the office of the judge of a High Court shall be vacated by his being appointed to be a judge of the Supreme Court-this could be done only with the consent of the judge concerned since nobody could be forced into judgeship of the Supreme Court- so also, vacancy could be caused by transfer to any other High Court only if it were with consent. A case of transfusion of sense, as it were. It was further stressed that Article 219 stipulated the necessity for oath of office being taken before a judge entered upon his office. Such an oath was taken with special reference to the High Court where he was becoming a judge. Therefore, on transfer to another State High Court a fresh oath was necessary and the form of oath spoke of appointment, not transfer. F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, a second time, there should be consultation with the Chief Justice and the government of the State to which he is transferred. Article 222 does not visualise such second consultation and neither side has a case that such protocol was adhered to ever before. Nor is a fresh warrant of appointment issued. Secondly, the Government of India Act, 1935 and the draft Constitution did not provide for transfer of judges but only their appointment in any other High Court. Then why did the makers of the Constitution deliberately depart specially to include the provision for transfer unless it be that it was meant. to vest this additional power in sharp contrast to the earlier limited power to appoint in another High Court'? Thirdly, whenever consent of the judge is contemplated, it is specifically stated e.g. Art. 224A, and its omission in Article 222 is a pointer to the nonconsensual sense. And when a constitutional provision, introduced by design and unambiguous in 'service' terminology, falls for construction, instruction about the setting is useful but interpretation by the judges to undo what was done by the authors is not right. We agree. At this stage we may read and de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g, [1948] 1 All E.R. 13 C.A.; see also Fletcher v. Minister of Town and Country Planning, [1947] 2 All E.R. 949. We consult a physician or a lawyer, an engineer or an architect, and thereby we mean not casual but serious, deliberate seeking of informed advice, competent guidance and considered opinion. Necessarily, all the materials in the possession of one who consults must be unreservedly placed before the consultee. Further, a reasonable opportunity for 49 6 getting information, taking other steps and getting prepared for tendering effective and meaningful advice must be given to him. The consultant, in turn, must take the matter seriously since the subject is of grave importance. The parties affected are high-level functionaries and the impact of erroneous judgment can be calamitous. Therefore, it follows that the President must communicate to the Chief Justice all the material he has and the course he proposes. The Chief Justice, in turn, must collect necessary information through responsible channels or directly, acquaint himself with the requisite data, deliberate on the information he possesses and proceed in the interests of the administration of justice to give the Presi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inally passed it seems to us that it must have dawned on the founding fathers of the Constitution who were men of learning and foresight, eminent jurists and legal luminaries, that every 4 97 possible situation of conceivable contingency must be covered and provided for. It was therefore that an express provision for transfer of Judges was incorporated in Article 222(1) of the Constitution. There is yet another aspect of the matter. As indicated above, the Attorney-General fairly conceded that the transfer of Judges under Article 222 was an unusual step and could be made only in public interest which would include compelling administrative exigencies, interest of the Judges themselves and such other factors. If consent is imported in Article 222 so as to, make it a condition precedent to transfer a Judge from one High Court, to another then a Judge, by withholding consent, could render the power contained in Article 222 wholly ineffective and nugatory. It would thus be impossible to transfer a Judge if he does not give his consent even though he may have great personal interests or close 'associations in his own State or by his conduct he brings about a stalemate in the judici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... secondly, the power can be exercised only in consultation with the Chief Justice of India who is the highest judicial authority of the country. We have already indicated that consultation as contemplated by Article 222 is not an empty ritual or an idle formality but is a matter of moment and must be fully effective. We shall advert to this aspect later. In view of the valuable safeguards laid down by the Constitution itself, the argument of Mr. Seervai that the power is capable of being misused cannot compel us to interpret Article 222 by ignoring the well settled rules of interpretation and as has been said, by playing the role not of a Judge but of a legislator. It was then argued by Mr. Seervai that just as in Article 217(1) which provides for appointment of a High Court Judge consent of the Judge is not expressly mentioned in the Constitution, but has to be implied because no Judge can be appointed without his consent, on a parity of reasoning the same should be said of Article 222(1). The argument, however, suffers from a serious fallacy. In the first place, there is a well recognised distinction between appointment and transfer. Appointment means an initial entry into servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee, Judge has to take an oath, it is really an appointment and not a transfer. Article 219 merely requires a ,person who is so appointed as Judge of the High Court to make and subscribe, oath before the Governor of the State, or some person appointed in that behalf by him. Technically speaking, once a Judge has taken an oath of appointment as a Judge of the High Court he continues to be a Judge until he attains the, age, of sixty- two years or is removed, resigns or dies. The oath taken by him continues until these contingencies. Thus, when a Judge is transferred the office which he vacates is not the entire office of the High Court Judge but only that part of the office which he had been holding as a Judge of a particular Court. Strictly speaking, therefore, when a Judge is transferred from one High Court to another under the clear sanction of law, namely, Article 222 (1 ) of the Constitution a fresh oath is not necessary. But even if on a liberal interpretation of Article 219 such an oath may be necessary when a Judge is transferred from one High Court to, another and before he enters in his new office as a transferee Judge, that, however, does not at all show that a Judge cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear that the sitting Judge, after a request is made to him, has no option in the matter but to act as an ad-hoc Judge of the Supreme Court. Indeed, if according to the submission of Mr. Seervai the word 'request' appearing in Article 127 (1) would include consent then clause (2) would have become redundant. The words "it shall be the duty of the Judge who has been so designated" clearly imposes a statutory obligation on the Judge to accede to the request made by the Chief Justice under Article 127 of the Constitution. It would thus appear that the Constitution itself specifies 'consent' where, it is intended and omits it when unnecessary. if, therefore, the Constitution-makers intended that under Article 222 a Judge cannot be transferred from one High Court to another without his consent then it should have been expressly so mentioned in the Constitution. Against this background if we approach the problem by interpreting Article 222 the absence of the word "consent" in Article 222 or in any other provision (requiring consent of the Judge before his transfer) clearly shows that the transferees consent is not within the purview of Article 222. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de to control the clear intendment of the article reflected in its unambiguous terms. To rewrite the Constitution, by the art of construction, passionately impelled by contemporary events, is unwittingly to distort the judicature scheme our founders planned with thoughtful care and to wish into words that plain English and plainer context cannot sustain. Ample as judicial powers are, they must be exercised with the sobering thought jus dicere et non jus dare (to declare the law, not to make it). Moreover, Mr. Seervai himself agreed that when we interpret a constitutional provision, a mere convention based on several considerations cannot be taken as conclusive of the scope of the Article. We are therefore clearly of the view that on an obvious interpretation of Art. 222, the concept of consent cannot be imported therein. By healthy convention, normally the consent of the Judge concerned should be taken, not so much as a constitutional necessity but as a matter of courtesy in view of the high position that is held by him. But there may be cases where, if the Judge does not consent and the public interest compels, the power under Art. 222 can 'be exercised. If we may tersely su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot an empty formality. So far as promotion of officers to the cadre of District Judges is concerned the High Court is best fitted to adjudge the claims and merits of persons to be considered for promotion...... We cannot accept this, Consultation or deliberation is not complete or effective before the parties thereto make their respective points of view known to the other or others and discuss and examine the relative merits of their views. If one party makes a proposal to the other who has a counter proposal in his mind which is not communicated to the proposer the direction to give effect to the counter proposal without anything more, cannot be said to have bee n issued after consultation." In Samsher Singh's case (2) one of us has struck the same chord It must also be borne in mind that if the Government departs from tile opinion of the Chief Justice of India it has to justify its action by giving cogent and convincing reasons for the same and, if challenged, to prove to the satisfaction of the Court that a case was made out for not accepting the advice of the Chief Justice of India. It seems to us that the word 'consultation' has been used in Article 222 as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Salutary safeguards to ensure judicial independence with concern for the All-India character of the superior courts in the context of the paramount need of national unity and integrity and mindful of the advantages of inter-state cross-fertilisation and avoidance of provincial perviciousness were all in the calculations of the framers of the Constitution. A power is best felt by its aware pre- sence and rare exercises. We have earlier stated that the appeal has happily ended by consensus. The deeper constitutional issues have been considered and answered by us, responding to our duty under Article 141 and to avoid future shock to the cardinal idea of justice to the justices. Sri Seervai drew our attention to the course adopted by the Judicial Committee did in Don John Francis Douglas Liyanage v. The Queen (1967 1. A.C. 259). The highest court with constitutional authority to declare the law cannot shrink from its obligation because the lis which has activised its jurisdiction has justly been adjusted. Moreover, full debate at the bar must be followed by fair judicative declaration. Now that the law is settled, ad hoc operations must be abandoned in favour of known finer normae. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... writ petition, is respondent No. 2 in the appeal.. Shri S. V. Gupte, Attorney General of India for the appellant and Shri Seervai, learned counsel for Respondent No. 1 (hereinafter to be called the respondent) advanced very able, learned and exhaustive arguments but ultimately asked us to pass an order in the appeal in terms as agreed to between them. On the conclusion of the hearing of the appeal we recorded our order on the 26th of August, 1977, the agreed terms of which are as follows :- "On the facts and circumstances on record the present Government do not consider that there was any justification for transferring Justice Sheth from Gujarat High Court and propose, to transfer him back to that High Court. On this statement being made by the learned Attorney General, Mr. Seervai, Counsel for Respondent No. 1 Justice S. H. Sheth) withdraws the writ petition with leave of the Court." The appeal thus could be allowed to stand disposed of finally on the basis of the consent order alone but considering that the points involved in it were of great public importance we thought it necessary and expedient to pronounce our judgment on the same. We accordingly do so today. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia in support of the proposed action of transfer by the President. There is no gain saying the fact that the power conferred on the President is not to be exercised by (1) 55 Indian Appeals, 360. him in his discretion but it has got to, be exercised on the advice of the Council of Ministers or the Ministers concerned. In other words, the order of transfer is, in substance and effect, an action of the Central Government. My learned brother Chandrachud, J. has dealt with the point of consultation with the Chief Justice of India elaborately and in great details. Largely and generally I respectfully agree with his views expressed in this regard. I may, however, add, even though it may be a repetition, that no order of transfer can be made by the President without the consultation with the Chief Justice of India. Such a consultation is condition precedent to the making of the order. All necessary facts in support of the proposed action of transfer must be communicated to him and all his doubts and queries must be adequa rely answered by the Government. Ordinarily and generally the views of the Chief Justice of India ought to prevail and must be accepted. The Government, however, as r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... particular branch of law; and (3) the general public policy of the Government of India declared from time to time has been that for the purpose of national integration an appreciable number of Judges in a particular High Court should be from other States, so on and so, forth. There, may also be a necessity of a transfer of a Judge on the ground that a Judge is not of good behaviour such as not being above board in the matter of integrity and honesty, being either corrupt or showing favour to a section of the members of the Bar, or he is a casteist or parochial in his approach in the administration of justice or the judiciary in the State. It would be undoubtedly in the public interest to send him from one High Court to another. This may not completely put a stop to his misdeeds but may minimise them appreciably. Such a transfer, however, as also the transfer on the ground that he is not pulling on well with the Chief Justice or his colleagues in the High Court will be punitive in character. Apart from the other difficulties, which I shall be presently discussing, in the way of translating into action such a transfer in public interest, I may just indicate here, that in such a situa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Union Government it is clear that although several transfers were made during 'the period of about 25 years since the advent of the Constitution, invariably as a matter of prudence, if not cerned. Mr. Sen in his speech also laid stress on this aspect of the matter. What led, all of a sudden, the then Central Government during the time of emergency in the year 1976 to suddenly transfer, as many as 16, Judges from one High Court to the other. How did the necessity of public interest sprout so suddenly which led the Government to make this mass transfer ? Allegations with reference to the particular examples were, made in the writ petition of the respondent to show that by and large only those Judges were picked up for transfer who during the period of emergency had delivered judgments which were not to the liking of the then Government. These, allegations were controverted in the counter of the Union Government. Truth or otherwise of the facts alleged were perhaps not justiciable in the case, or in any event, could not be adjudicated upon. But one thing is certain which I would venture to say', and perhaps not unjustifiably or by crossing the, permissible limits, that the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e above are illustrated by the terms of the consent order itself. Democratic franchise brought about a change in the Government and 'the present Government categorically say that they "do not consider that there was any justification for transferring Justice Sheth from Gujarat High Court and propose to transfer him back to that High Court." One is merely left to conjecture what public interest led the previous Government to transfer Shri Justice Sheth; which the present Government found to be unjustified. Supposing there is a change of Government again then Justice Sheth may be transferred again. Are the Judges, thus, to be treated like a pack of tobacco to be transferred from one place to another at the sweet-will of the Government ? In the background set out above I now come to the real grip of the matter as to whether a transfer can be made without the consent of the Judge concerned under Article 222 (1) which reads thus : "222. Transfer of a judge from one High Court to another,-(1) The President may, after consultation with the Chief Justice of India, transfer a Judge from one High Court to any other High Court." There are no words of limitation eith ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce until he attained the age of 60 years but it was subject to three provisos mentioned therein : (a) a Judge could resign his office; (b)He could be removed from his office on the ground of mis-behaviour or of infirmity of mind or body etc; (c) the office of the Judge stood vacated "by his being appointed to be a Judge of the Federal Court or of another High Court Neither in proviso (c) nor in any other section of the, Government of India Act was the word ("transfer" used or such a power conferred in terms on the Governor General. Now let me examine the relevant provisions of the Constitution of India. Article 124 provides, for the establishment and constitution of the Supreme Court as consisting of a Chief Justice of India and certain number of other Judges. A Judge of the Supreme Court is appointed under clause (2) of Article 124. He holds office until lie attains the age of 65 years subject to two provisos, viz., (a) resignation and (b) removal. A Judge of the High Court is qualified to be appointed as a Judge of the Supreme Court under clause (3) (a). Under clauses (4) and (5) a Judge of the Supreme Court may be removed on the ground of proved misbehaviour or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icle 217 then on appointment as a Judge of the Supreme, Court he has to re-enter and occupy that office in accordance with Article 124 (6). What is the effect of the office, of a Judge being vacated by his transfer to any other High Court? Does it stand vacated as soon as the order of transfer is made ? Or, is it vacated when he assumes office as a Judge of the High Court to which he is transferred? Proviso (c) provides for the vacation of the office of a Judge of the High Court from which he is transferred but Article 222 does not make any provision for re-entering office or occupying it as a Judge of the different High Court to which he is transferred. The only mode and the procedure left for that purpose is to be found in Article 219 and no where else. The mere order of transfer does not make him a Judge and a member of the High Court to which he is transferred. There is no such condition of service or office of a Judge provided for in the Constitution or in any other law. Appointment as a Judge to the Supreme, Court and transfer to another High Court within the meaning of proviso (c), in my opinion, are in substance on the same footing. Appointment of a High Court Judge to be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t there is no such provision in Article 222. To, me it appears that it may be a lacuna or this may not have been thought quite necessary. But that does not take away the effect of Article 219. In State of Assam v. Ranga Mahammad and Ors (1). Hidayatullah, J., as he then was, delivering the judgment on behalf of a Constitution Bench, with reference to the interpretation of Articles 233 and 235 pointed out at page 460. "In the, same way the word 'posting' cannot be understood in the sense of 'transfer' when the idea of appointment and promotion is involved in the combination. In fact this meaning is quite out of place because 'transfer' operates at a stage beyond appointment and promotion." The above passage would lend support the view that transfer operates at a stage beyond appointment. But then, a vital distinction has to (1) [1967] 1 S.C.R. 454. 51 3 be noticed between the language of the various Articles in Chapter V of Part VI mentioned above and Article 233 occurring in Chapter VI of that Part. The said Article in terms uses the words :- "Appointments of persons to be, and the posting and promo- tion of, district Judges in any State. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appointed a Judge of the-Supreme Court without his consent. Public interest may require that he should be so appointed. But at the same time public interest also demands non-interference with the independence of the judiciary by not forcing a Judge to vacate his office of a Judge of the High Court to which he was appointed and to accept the office of a Judge of the Supreme Court or the High Court without his consent, until and unless a special law or procedure has been made or prescribed guarding against any inroad on the independence of the judiciary. 9-930SCI/77 I am tempted to adopt the reasoning of Lord Reid and Lord Pearce given in the quotations of their speeches in the case of Rondel v. Worsley(1). Quoting Lord Justice Fry at page 229 Lord Reid has said "The rule of law exists, not because the conduct of those persons ought not of itself to be actionable, but because if their conduct was actionable, actions would be brought against judges and witnesses in cases in which they did not spoken with malice, in which they had not spoken with falsehood. It is not a desire to prevent actions from being brought in cases where they ought to be maintained that has led to the adopt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ast my vote in its favour as my judicial conscience does not permit me to allow the executive to temper with the independence of the judiciary in this fashion. I would try to prevent it if it is possible to do so on justifiable, valid and reasonable grounds. I would end my judgment by quoting a memorable passags from the judgment of Lord Pearce in the case of Don John Francis Douglas Liyanage & Ors. v. The Qeen ([1967] 1 A.C. 259) at page 291 : "If such Acts as these were valid the judicial power could be wholly absorbed by the legislature and taken out of the hands of the judges. It is appreciated that the legislature had no such general intention. It was beset by a grave situation and it took grave measures to deal with it, thinking, one must presume, that it had power to do so and was acting rightly. But that. consideration is irrelevant, and gives no validity to acts which infringe the Constitution. What is done once, if it be allowed, may be done again and in a lesser crisis and less serious circumstances. And thus judicial power may be eroded. Such an erosion is contrtry to the clear intention of the Constitution. In their Lordships' view the Acts were ultra wires ..... X X X X Extracts X X X X X X X X Extracts X X X X
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