1977 (9) TMI 115 - SC - Indian Laws

High Court Judge Transfer: Public Interest, Consultation with Chief Justice

UOI. Versus SANKALCHAND HIMATLAL SHETH

The Supreme Court of India held that the transfer of a High Court Judge without their consent is constitutional if in the public interest. Effective ... - Issues Involved:1. Constitutionality of the transfer of a High Court Judge without their consent.2. Validity and scope of consultation with the Chief Justice of India under Article 222(1) of the Constitution.Detailed Analysis:1. Constitutionality of the Transfer of a High Court Judge Without Their Consent:- Argument by Respondent: The respondent argued that the transfer of a High Court Judge without their consent is unconstitutional. Article 222(1) of the Constitution should be interpreted to imply that a Judge cannot be transferred without their consent. The respondent emphasized that judicial independence could be undermined by vesting the power of transferring a Judge in the executive. The respondent contended that the transfer of a Judge from one High Court to another without their consent is calculated to undermine the independence of the judiciary.- Court's Interpretation: The court held that the power to transfer a High Court Judge is conferred by the Constitution in public interest and not for the purpose of providing the executive with a weapon to punish a Judge. The court found that the Constitution does not explicitly require the consent of the Judge for their transfer. The court stated, 'The power to transfer a High Court Judge is conferred by the Constitution in public interest and not for the purpose of providing the executive with a weapon to punish a Judge who does not toe its line.'- Conclusion: The court concluded that a High Court Judge could be transferred without their consent if the transfer is in public interest. The court emphasized that the power of transfer must be exercised reasonably and in furtherance of public interest. The court rejected the argument that the transfer of a High Court Judge without their consent is unconstitutional.2. Validity and Scope of Consultation with the Chief Justice of India Under Article 222(1):- Argument by Respondent: The respondent argued that effective consultation with the Chief Justice of India is a condition precedent to the exercise of the power to transfer a Judge under Article 222(1). The respondent contended that consultation means 'effective consultation' and that the precondition of Article 222(1) that no transfer can be made without such consultation was not fulfilled.- Court's Interpretation: The court held that consultation with the Chief Justice of India is obligatory and must be real and substantial. The court stated, 'Consultation within the meaning of Article 222(1) means full and effective, not formal or unproductive, consultation.' The court emphasized that the President must place all relevant data before the Chief Justice of India to enable him to tender his considered opinion on the subject. The court further stated that the Chief Justice of India must be given a reasonable opportunity to consider the relevant facts and circumstances before tendering his opinion.- Conclusion: The court concluded that effective consultation with the Chief Justice of India is a mandatory requirement under Article 222(1). The court emphasized that the consultation must be meaningful and that the President must make the relevant data available to the Chief Justice of India. The court held that the transfer of a High Court Judge without effective consultation with the Chief Justice of India would be invalid.Final Order:The appeal was disposed of in terms of the settlement agreed upon by the parties. The court recorded the following order: '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.'Separate Judgments:- CHANDRACHUD, J.: Emphasized the importance of judicial independence and the need for effective consultation with the Chief Justice of India. Concluded that a High Court Judge could be transferred without their consent if the transfer is in public interest.- BHAGWATI, J.: Highlighted the significance of judicial independence and the need for meaningful consultation with the Chief Justice of India. Concluded that the transfer of a High Court Judge without their consent would undermine judicial independence.- KRISHNA IYER, J.: Stressed the importance of judicial independence and the role of the judiciary in upholding the Constitution. Emphasized the need for effective consultation with the Chief Justice of India and concluded that the transfer of a High Court Judge without their consent is permissible if it is in public interest.- UNTWALIA, J.: Agreed with the need for effective consultation with the Chief Justice of India. Emphasized the importance of judicial independence and expressed concerns about the potential misuse of the power to transfer Judges.Summary:The Supreme Court of India held that the transfer of a High Court Judge without their consent is constitutional if the transfer is in public interest. The court emphasized that effective consultation with the Chief Justice of India is a mandatory requirement under Article 222(1) of the Constitution. The consultation must be meaningful, and the President must make the relevant data available to the Chief Justice of India. The appeal was disposed of based on a settlement agreed upon by the parties, with the present government proposing to transfer Justice Sheth back to the Gujarat High Court.