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PETITIONER: UNION OF INDIA

       Vs.

RESPONDENT: SANKAL CHAND HIMATLAL SHETH AND ANR.

DATE OF JUDGMENT19/09/1977

BENCH: CHANDRACHUD, Y.V. BENCH: CHANDRACHUD, Y.V. BHAGWATI, P.N. KRISHNAIYER, V.R. UNTWALIA, N.L. FAZALALI, SYED MURTAZA

CITATION:  1977 AIR 2328            1978 SCR  (1) 423  1977 SCC  (4) 193  CITATOR INFO :  R          1978 SC 694  (80,81,85,86)  R          1979 SC1109  (6)  RF         1981 SC 561  (50)  R          1981 SC1274  (11)  F          1982 SC 149  (28,29,46,51,53,106,107,108,10  R          1984 SC 399  (12)  R          1987 SC 331  (27)  R          1992 SC  96  (14)

ACT: Practice  and Procedure When there has been a  challenge  to the  constitutionality  of an Act, compending,  of  the  lis cannot  lull the Court into treating the subject  non-issue- Constitution  of  India, 1950-Art. 136-Duty of Court  in  an appeal under. Interpretation     of    statutes-Interpretation    of     a Constitutional  provision-Rule of harimonious  construction, essence of. Interpretation   of   statutes-Meaning  of   words-Rule   of construction--Must  be  examined in its context and  in  the sense which the legislature has in view. Interpretation     of    statutes-Interpretation    of     a constitutional  code-Legislative History plus-Value  of  and consultation by Courts. Constitution ofIndia, 1950, Art.  222(1)-Interpretation of Art. 222(1)-Whether- it implies"consent"   of  a   judge before he can be transferred by the President of India front one  High Court to another-Whether the transfer without  his consent unconstitutional. Constitution  of India, 1950, Art. 222(1)-Transfer of  judge front  one  High  Court  to  another  by  the  President  of India--Consent  and basic material and minimum  requirements for consultation. Constitution   of   India,  1950,  Arts.  50,   217(1)   and 222(1)--Scope  and effect of the word "transfer"  occurring in the said Article. Constitution  of  India, 1950,  Article  222(1)-Whether  the transfer  of  a  High Court Judge from  one  High  Court  to another   without  his  consent  is  in  violation  of   the principles of natural justice. Bias,  doctrine  of-Objection by the Union of India  to  the

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hearing,  by a special Bench, of the Writ Petition  by  High Court  Judge  against the order of his transfer  to  another High Court-Propriety of the objections.

HEADNOTE: On   May  27,  1976,  the  President  of  India   issued   a notification  to  the  effect "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 High Court of  Gujarat as  judge of High Court of Andhra Pradesh with  effect  from the date he assumes charge of his office." The  notification was  issued  by the Government of India in its  Ministry  of Law,  Justice  and Company Affairs, Department  of  Justice. Mr.  Justice Sheth complied with the order of  transfer  and assumed  charge of his office as a judge of  Andhra  Pradesh High  Court, but before doing so, he filed a  Writ  Petition No.  911 of 1977 in the Gujarat High Court  challenging  the constitutional validity of the notification on the following grounds:               1.    The   order  was  passed   without   his               consent;  such  consent  must  be  necessarily               implied   under   Article   222(1)   of    the               Constitution and, therefore, the transfer of a               judge  from  one High Court  to  another  High               Court without his consent is unconstitutional;               2.    The  order was passed in breach  of  the               assurance given on behalf of the Government of               India by the then ’.Law Minister               424               Shri A. K. Sen, while moving the  Constitution               (15th  Amendment)  Act, 1963 and  in  the  Lok               Sabha  that "So far as the High  Court  Judges               were concerned, they should not be transferred               excepting  by  consent".   Mr.  Sheth   having               accepted  the Judgeship of Gujarat High  Court               on  April  23,  1969  on  the  faith  of   Law               Minister’s assurance, the Government of  India               was bound by that assurance on the doctrine of               promissory estoppel.               3.    The order of transfer mitigated  against               public  interest the power conferred  by  Art.               222(1)    was   conditioned    by    existence               and  requirement of public interest and  since               the  impugned transfer was not shown  to  have               been  made  in public interest, it  was  ultra               vires, and               4.    The  order was passed without  effective               consultation with the Chief Justice of  India.               ’Consultation’  under  article  222(1)   means               ’effective   consultation’   and   since   the               precondition   of  article  222(1)   that   no               transfer   can  be  made  without  such   con-               sultation,  was not fulfilled, the  order  was               bad and of no-effect. The  Writ  Petition was heard by a special  Bench  of  three Judges.   They  unanimously rejected the  challenge  to  the order  of transfer on the promissory estoppel.   As  regards the  ground of consent J. B. Mehta Desai JJ. held  that  the order was not void for want of Mr. Sheth’s his transfer.  A. D.  Desai  J. however, took the view that  the  judge  Court cannot be transferred without his consent.  As to the ground

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of  consultation  with  the Chief  Justice  of  India,  they unanimously  held  that no effective consultation  with  the Chief  Justice  of  India, though they  this  conclusion  by different  processes of reasoning.  A preliminary  objection raised by the Union of India to the three particular  Judges hearing the matter on the ground of bias was overruled.  The High  Court has granted to the Union of India a  certificate under Article 132 and 133(1) of the Constitution of India to appeal to this Court. The objection of bias was given up by the appellant and  the contention as regards promissory estopped was not pressed by the  Respondent petitioner in this appeal.   The  Respondent petitioner, however, contended (i) that the power  conferred by Art. 222(1) is, by necessary implication, subject to  the precondition   that  the  Judge,  who  is  proposed  to   be transferred  must consent to his transfer,  the  fundamental basis being, that judicial independence can be undermined by vesting  the power of transferring a judge in the  executive and,  therefore, the transfer of High Court Judges from  one High Court to another without their consent is calculated to undermine the independence of the High Court Judges and (ii) that,  in order to uphold the independence of the  judiciary which is a basic feature of the Constitution, the Court  has not  only  the power but it is its plain duty to  read  into Art.  222(1)  a limitation which is not to be found  on  the face  of  that Article.  Elaborating the contention  it  was argued               (1)   The transfer of a Judge, in many a case,               inflicts   personal  injuries  on  him.    For               example,  a  Judge transferred from  one  High               Court  to  another may have  to  maintain  two               establishments;  if  his  wife  or   unmarried               daughter  is  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 practicing not only in  the               High Court to which he was initially appointed               but in the High Court or High Courts to  which               he   may  be  subsequently  transferred.    To               empower   the  executive  to   inflict   these               injuries  on a Judge would  gravely  undermine               the  independence  of the  judiciary  because,               human nature being what it is, a large  number               of Judges would, consciously or unconsciously,               be induced to fall in line with the wishes and               policies of the executive government.               (2)   It would be surprising anomaly that  the               transfer of subordinate judges, as decided  by               the Supreme Court in several cases, should  be               exclusively  within  the control of  the  High               Court in               425               order  to ensure that those judges are  immune               from the exercise of improper pressures by the               executive,    whereas   High   Court    Judges               themselves,   for   whose   independence   the               Constitution  has made copious  and  elaborate               provisions, should be left to the mercy of the               executive.               (3)   The  requirement of article 222(1)  that               the President ,trust consult the Chief Justice               of India before transferring a Judge does  not               answer   the  problem  because,  even   though               consultation  with the Chief Justice is not  a

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             matter  of  formality,  the  final  word,   in               practice, always rests-with the executive.               (4)   Assuming  that the President’s power  to               transfer  a High Court judge would be  reduced               to  a  dead letter if that power  is  made  to               depend upon the Judge’s consent, if the choice               lay between depriving numerous articles of the               Constitution designed               to  secure               the  independence  of the judiciary  of  their               content  and,  on the  other  hand,  depriving               article   222(1)  of           its   practical               effect,  the second alternative ought  to  and               must be preferred.               (5)   The oath which a Judge of the High Court               has  to  take,  as  prescribed  by  the  Third               Schedule,  Clause  VIII of  the  Constitution,               that he will perform the duties of his  office               "without fear or favour", an expression  which               was absent in the form of the oath  prescribed               by Schedule IV to the Government of India Act,               1935,  will  not only become  meaningless  but               will                   be impossible to fulfil               unless  it was placed out of the power of  the               legislature or the executive to secure  favors               from  a  Judge by putting him in fear  of  the               injury which can easily be inflicted upon  him               by  transferring  him from one High  Court  to               another.               (6)   Even  assuming  that transfers  of  High               Court Judges are necessary in the interests of               national  integration,  it cannot  be  ignored               that independence of the High Court Judges  is               the highest public interest, particularly in a               federal  or  quasi-federal  Constitution  like               ours  and if there is a conflict of  interest,               the high principle of the independence of  the               judiciary  must  prevail  over  the  amorphous               concept of national integration.               (7)   The  transfer of a Judge from  one  High               Court to another is, subject to incidents like               continuity  of  service, in the  nature  of  a               fresh appointment to the other Court.  Since a               person can. not be appointed to a post without               his consent, article 222(1) 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 consensual, not a compulsive  shifting               of a Judge from one High Court to another.               (8)   It is of the essence of judicial service               that    there   is    no    master-and-servant               relationship   between   a   Judge   and   the               Government.  The Judge cannot be asked by  the               Government to decide a case in any  particular               way.   Even the higher Court, generally,  only               corrects the Judge of the lower court-It  does               not  command  him.  Therefore,  "transfer"  in               article  222(1) does not have the same  colour               or  content as in        other services.   The               concept  of ’transfer" under that  article  is               totally  different,  a concept which  must  be               construed   harmoniously  with   the   various               constitutional provisions which are enacted in

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             order to secure judicial independence.  A non-               consensual transfer will provide the executive               with  a potent weapon to punish the Judge  who               does not toe its line and thereby destroy  the               independence of the judiciary.               426               (9)   Of no word can one say that it is  clear               and  unambiguous  unless one reads  the  whole               document   in   which   that   word    occurs.               "Transfer",  in  the  context  of  the  entire               constitutional   scheme  becomes  a  word   of               doubtful  import.  If a  vital  constitutional               principle is going to be violated by putting a               wider construction on that expression, it must               receive  a  narrow,  restricted  meaning;  and               lastly.               (10)Such  a narrow interpretation  will  not               deprive the article of its practical  efficacy               or  reduce it to a dead letter because,  as  a               matter   of  fact,  nearly  25   judges   were               transferred  with  their  consent  since   the               inception  of the Constitution.  It was,  only               during the emergency, when every safeguard  of               liberty had gone, that mass transfers of  High               Court Judges were resorted to by the executive               on  grounds unconnected with the  requirements               of public interest. The  appellant union did not dispute that the greatest  care ought  to  be  taken to preserve  the  independence  of  the judiciary which the constitution so copiously protects.  The appellant, however, contended : (i) that the word ’transfer" which  occurs  in  Art.  222(1)  is  not  an  expression  of ambiguous import, that there is no justification for reading the precondition of "consent" in the article which is not to be found therein, and then even assuming for the purposes of argument that a judge has to take a fresh oath before taking office  in  the  High  Court to  which  he  is  transferred, "transfer"  doesn’t involve a fresh appointment and as  such the consent of the judge to his transfer from one High Court to  another is not necessary and (ii) the consultation  with the   Chief  Justice  can  be  adequate  safeguard   against arbitrary transfers. At the end of the argument on August 26, 1977, the appellant and Respondent arrived at a settlement viz.               "On the facts and circumstances on record  the               present  government  does  not  consider  that               there  was any justification for  transferring               Justice  Sheth  from Gujarat  High  Court  and               propose  to  transfer him back  to  that  High               Court.   On this Statement being made  by  the               learned Attorney-General Mr. Seervai,  counsel               for  Respondent  No. 1 (Justice S.  E.  Sheth)               withdraws the Writ Petition with leave of  the               Court". Disposing  the  appeal  by  certificate  in  terms  of  that settlement, the Court HELD: Per  majority  (P.   N, Bhagwati and  N.  L.  Untwalia,  JJ, contra) 1.There  is no need or justification in order  to  uphold and protect the independence of the judiciary for construing Art. 222(1) to mean that a Judge cannot be transferred  from one High Court to another without his consent.  The power to transfers High Court Judge is conferred by the  constitution in  public interest and can be exercised in public  interest

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only. 2.Art.  222(1)  casts  an  absolute  obligation  on   the President  to  consult  the Chief Justice  of  India  before transferring  a Judge from one High Court to another.   This is  in  the nature of a condition precedent  to  the  actual transfer  of the Judge.  Consultation within the meaning  of Art.  222(1)  means  full  and  effective,  not  formal   or unproductive consultation. [452 E-G] Per Chandrachud, J. 1.The  normal  rule of interpretation is that  the  words used by the Legislators are generally a safe-guide to  their intention.   Where  the  statute’s  meaning  is  clear   and explicit, words cannot be Interpolated.  What is true of the 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 4 2 7 bear more than one meaning, that is to say, if the words arc 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 an ordinary manner which will make the  particular provision  purposeful.   If  the  provision  is  clear   and explicit  it cannot be reduced to a nullity by reading  into it  a meaning which it does not carry.  That in  essence  is the rule of harmonious construction. [441 B-D] Home Building, and Loan Association v. Blaisdell 78 L.  Edn. 413  (1934);  Griswold  v. Connecticut 14  L.  Edn  2d,  510 (1965), Massachusetts S. & Insurance Co. (1956) 352 U.S. 128 (at p. 138); West Minister Bank Ltd. v. Zang (1966) A.C. 182 quoted  with approval; S. Narayanaswami v. G.  Panneerselyam A.I.R.  1972  S.C.  2284  & 2290  Followed;  M.  Pentiah  v. Veeramallappa  A.I.R. 1961 S.C. 1107 (at p.  1115)  Applied; Seaford  Court Estates Ltd. v. Asher 1949 (2) All  E.R.  155 (at p. 164) Inapplicable. 2.There  is no need for justification in order to  uphold and  protect  the independence of judiciary  for  construing Art.  222(1)  to mean that the judge cannot  be  transferred from one High Court to another with his consent.  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 or who for some reason or  the  other has  fallen from its grace.  The extraordinary  power  which the  Constitution  has conferred on the  President  by  Art. 222(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. [444 C-D, E] 3.Once  it is appreciated that a High Court Judge can  be transferred  on  the  ground of  public  interest  only  the apprehension  that  the  executive  may  use  the  power  of transfer is for its own ulterior ends and thereby  interfere with  the  independence of judiciary loses its  force.   The hardship,  embarrassment  or inconvenience  resulting  to  a judge by reason of his being compelled to become a  litigant in his own court cannot justify the addition of words to  an Article  of  the  Constitution making  his  consent  a  pre- condition of his transfer. [445 A, B] 4.It  is needless in a broad sense to cut down the  width of  the  words used in Art. 222(1) by making  the  power  of transfer dependent on the consent of the, judge himself.  It

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is  also needless in order to effectuate the object  of  the other constitutional provisions to read any such  limitation into  that  Article.   The transfer of a  High  Court  Judge without   his  consent  will  not  damage  or  destroy   the provisions contained in the Constitution for preserving  the independence of the judiciary. [.446 E-H. 447 A] R.M.  D. Chamarbaugwala v. Union of India, [1957]  S.C.R. (930 at 936): Attorney General v. Prince Ernest Augustus  of Hanover,   [1957]   A.C.  436,  460  61;  The   River   Wear Commissioners  v.  William Adamson & Ors. 1876-7AC  743  (at 764, 767) Explained. 5.The  fact  that a judge who is transferred  to  another High  Court has to take a fresh oath before he  assumes  the charge  of his office as a judge of the High Court to  which he  is  transferred does not support the  argument  that  he enters upon a new office as a result of a fresh appointment. The simple fact is that the judge is transferred to  another High Court, not appointed once over again as a Judge of  the High Court or even as a judge of the High Court to which  he is transferred.  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. [447 G-H, 448 A, G] M.   P. V. Sundaramier v. State of Andhra Pradesh [1958] SCR 1422 (at p.1478).  Followed. 6.   Clause  (c)  of Art. 217, itself  makes  a  distinction between  appointment  and  transfer.     They  connote   two distinct concepts and one is not to be con- 42 8 fused  with  the other.  The technical  rules  of  procedure governing    service    conditions   cannot    affect    the interpretation  of  a  substantive provision  like  the  one contained in article 222(1) of the Constitution. [449 C,  H, 450 A] 7.Whatever measures are required to be taken in order  to achieve  national integration would be in  public  interest. Whether  it  is necessary to transfer judges from  one  High Court to another in the interest of national integration  is a moot point.  But that is a policy matter with which Courts are   not   concerned  directly.   Considering   the   great inconvenience, hardship and possibly a slur which a transfer from  one  High Court to another involves, the  better  view would  be  to  leave the judges  untouched  and  take  other measures to achieve that purpose. [450 B-C] Observation.-If at all on mature and objective appraisal  of the  situation it is still felt that there should be a  fair sprinkling  in  the High Court judiciary of  persons  to  be belonging  to other States, that object can be  more  easily and effectively attained by making appointments of outsiders initially. [450 C-D] 8.Judges  of the High Court owe their appointment to  the Constitution  and  hold a position of  privilege  under  it. There  is  a fundamental distinction in the master  and  the servant  relationship  as is generally  understood  and  the relationship  between  the  Government and  the  High  Court Judge.  The judges of the High Court are not the  Government servants  in the ordinary signification of that  expression. [450 H, 451 C] 9.In fact, that is why the Government cannot on its  own, take a unilateraldecision  in regard to  the  appointment and transfer of High Court.  Judges.[451 D] 10.Article 222(1) is in substance worded in similar  terms as  the 1st proviso to Article 124(2) and Art.  217(1).   It

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casts an absolute obligation on the President to consult the Chief Justice of India before transferring a Judge from  one High Court to another.  That is in the nature of a condition precedent  to  the actual transfer of the Judge.   In  other words  the  transfer of a High Court Judge to  another  High Court  can not become effective unless the Chief Justice  of India  is  consulted  by  the President  on  behalf  of  the proposed  transfer.   Indeed, it is euphemistic to  talk  in terms of effectiveness, because the transfer of a High Court Judge  to  another  High Court  is  unconstitutional  unless before  transferring the Judge, the President  consults  the Chief Justice of India. [452 E-G] 11.While  consulting the Chief Justice the President  must make  the  relevant data available, to him on the  basis  of which  he  can  offer to the President the  benefit  of  his considered  opinion.  If the facts necessary to arrive at  a proper  conclusion  are  not made  available  to  the  Chief Justice,  he  must ask for them because in  casting  on  the President  the obligation to consult the Chief  Justice  the Constitution at the same time must be taken to have  imposed a duty on the Chief Justice of India to express his  opinion and nothing less than a full consideration of the matter  on which  he is entitled to be consulted.  The  fulfillment  by the President of his constitutional obligation to place full facts  before the Chief Justice and the performance  by  the latter  of the duty to elicit facts which are  necessary  to arrive at a proper conclusion are parts of the same  process and   are  complementary  to  each  other.    The   faithful observance of these may well earn a handsome dividend useful to  the administration of justice.  Consultation within  the meaning  of  Article  222(1),  therefore,  means  full   and effective, not formal or unproductive, consultation. [453 D- F] 12.Deliberation is the quintessence of consultation.  That implies  that  each  individual  case  must  be   considered separately on the basis of its own facts.  Policy  transfers on  a wholesome basis which leave no scope  for  considering the  facts of each particular case and which are  influenced by  one-sided  governmental considerations ire  outside  the contemplation of our constitution.[454 A-B] Rolls 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) 1 All F.R. 946, referred to. 42 9 R. Pushpam v. State of Madras, A.I.R. 1953 Mad 392 Approved; Chandramouleshwar  Prasad v. Patna High Court [1970]  2  SCR 666, Applied. 13.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  Consti- tution requires is consultation with the Chief Justice,  not his  concurrence  with ,,he proposed transfer.  But  by  and large,  the opinion of the Chief Justice of India should  be accepted  by  the Government of India.  The  Court  will  be entitled  to examine if any other  extraneous  circumstances have entered into the verdict of the executive if it departs from  the counsel given by the Chief Justice of India.  [455 A-B] Shamsher Singh v. State of Punjab, [1975] 1 SCR [A.I.R. 1974 SC. 2192] Reiterated & followed. 14.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

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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, therefore,  the  judge  concerned cannot  have reason to complain of Arbitrariness  or  unfair play, if the due procedure is followed. [456 B-D] 15.Consideration  of  the violation of the  principles  of Natural Justice for the purposes of validation of a transfer is out of place in the scheme of Art. 221(1). [456 D-E] Rex  v. University of Cambridge (1723) 1 Stn 557;  Ridge  v. Baldwin 1964 A.C. 40; State of Orissa v. Dr. (Miss) Binapani Dei  A.I.R. 1967 SC 1269; A. K. Kraipak v. Union  of  India, A.I.R. 1970 S.C. 150, referred to. Per Bhagwati J. 1.When questions of great constitutional importance  have been raised affecting the independence of the judiciary  and argued  with great passion  and fervour in an  appeal  under Art. 136 of the Constitution, the Court ought to express its opinion on them, notwithstanding the fact that the appeal is disposed  of  in  terms of the  agreed  formula  arrived  at between the parties at the close of the arguments. [457 D-E] 2.Where  the language of an enactment is plain and  clear upon its face and by itself susceptible to only one meaning, then  ordinarily that meaning would have to be given by  the court.   The  words of a statute must be understood  in  the same  sense  which  the Legislature has in  view  and  their meaning must be found not so much in a strictly  grammatical or etymological propriety of language nor in its popular use as in the subject or the occasion on which they are used and the  object  to be attained.  The words used  in  a  statute cannot  be road in isolation; their colour and  content  are derived  from their context and, therefore, every word in  a statute  must be examined in its context.  Context means  in its  widest sense in not only other enacting provisions  of the same statute but its preamble the existing state of  the law,  other  statutes  in  pari  materia  and  the  mischief which .... the statute was intended to remedy." The  context is  of the greatest importance in the interpretation of  the words used in a statute. [467 E-H] 430 Town v. Eisner, 245 U.S. 418, Helvering v. Gregory 69 F.(2)d 809;  Heydon’s  case (1584) 3 W. Rep. 16; 76 ER  637;  River Wear Commissioners v. Adamson (1876-77) App.  Cs 743 at  764 Referred to. 3.The  power to transfer a Judge from one High  Court  to another  under Art. 222(1) clause (1) can be exercised  only in  public interest and it would be gross abuse of power  to displace 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. [460 F-G] HELD (Contra) 4.The  transfer of a judge may be "consensual" i.e.  with

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consent  or compulsory i.e., without consent, and  the  word "transfer"  according  to its plain  natural  meaning  would include  both kinds of transfer.  Having regard to  manifest intent of the constitution-makers to secure the independence of the superior judiciary and the context and the setting of the provision in which the word "transfer" occurs should  be interpreted  by  giving a narrower meaning limited  only  to consensual  transfer.   Two  weighty reasons  why  the  more limited  meaning should be preferred and transfer should  be confined to consensual transfer are : (1) the transfer of  a judge  from  one  High Court  to  another  would  ordinarily inflict personal injuries on him and (ii) the transfer would disable  him from 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 practicing in a number of High Courts after his retirement. [468 F-H, 469 D] Shamsher Singh v. State of Punjab [1975] 1 SCR 874 Applied; State of West Bengal & Anr. v. Nripendrnath, Bagchi [1966] 1 SCR  77 1; State of Assam v. Ranga Mohmmed & Ors.  [1967]  1 SCR 54 referred to. 5.On  the  terms of Art. 222, clause (1),  the  power  of transfer  is  conferred  on the President,  which  means  in effect  and  substance the executive,  since  the  President cannot act save in accordance with the aid and advice of the Council of Ministers.  If on a proper construction of clause (1) of Art. 222, the power of transfer could be exercised by the executive and the High Court Judge could be  transferred without  his consent, it would be a highly dangerous  power. [469 G-H, 470 A] 6.It  is  no  doubt  true that  the  words  "without  his consent" are not to be found in clause (1) of Art. 222,  but the  word "transfer" which is used there is a  neutral  word which can mean consensual as well as compulsory transfer and if the high and noble purpose of the Constitution to  secure the independence of the superior judiciary by insulating  it from all forms of executive control or interference is to be achieved  , the word "transfer" must be read in the  limited sense of consensual transfer. [472 D-E] Massachusatts  S. Insurance Co. v. U.S. [1956] 352 U.S.  128 Referred to. State  of Assam v. Ranga Mohammad and Ors. [1967]  1  S.C.R. 454, Followed. 7.When  a judge is transferred to another High Court,  he has to make and subscribe a fresh oath of affirmation before the Governor of the State to which he is transferred, before he can enter upon the office of a judge of that High  Court. Such appointment would not become effective unless the judge who   is  appointed  makes  and  subscribes in   oath   or affirmation before the Governor.  And that would plainly  be a  matter  within  the  volition  of  the  judge.   It   is. therefore,  obvious  that the volition of the judge  who  is transferred  is essential for making the transfer  effective and  there  can be no transfer of a judge of  a  High  Court without his consent. [474 F-H] 8.It  is  true that there might be some cases  where  the dictates  of  public interest might require  transfer  of  a judge  from  one High Court to another, but  such  cases  by their  very nature would be few and far between.   It  would not 431 be correct, on account of a few such cases, to concede power in the executive to transfer a High Court Judge without  his consent  which  would  impinge on the  independence  of  the judiciary. [475 H, 476 A]

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9.The transfer of an undesirable Judge may secure  public interest and his continued presence in the Court from  where he is to be transferred may be an evil, but it is  necessary to put up with that evil in order to secure the longer  good which  flows  from the independence of the  Judiciary.   The public  interest in the independence of the judiciary  must, therefore,   clearly  prevail  and  a   construction   which subserves this higher public interest mast be accepted  [476 C-D] Don  John  Francis  Douglas Liyanange & Ors.  v.  The  Queen [1959] 1 A.C. 259 Applied. (Concurring with Iyer, J.) HELD: 10.According  to  the plain natural meaning of  the  words used in clause (1) of Art. 222, it does appear that there is a  limitation on the exercise of the power of the  President to transfer a judge from one High Court to another and it is that  there  must be previous consultation  with  the  Chief Justice  of  India.  Unless there is  previous  consultation with  the Chief Justice of India, the exercise of the  power of transfer would be invalid. [467 C-D, 477 E] 11.Art.  50 has been described as "the conscience  of  the Constitution"  which embodies the social philosophy  of  the Constitution  and its basic underpinnings and values and  it plainly reveals, without any scope for doubt or debate,  the intent of the Constitution-makers to immunise the  judiciary from any form of executive control or interference. [465  E- F] Per Iyer J. (On behalf of Fazal Ali J. and himself). 1.Compounding  of  the  lis cannot lull  the  court  into treating the subject of "transfer" of Judges under Art. 222, a  non-issue.  This court has no crystal ball  to  foretell, nor  radar  to  detect the possible  interference  with  the judiciary by the current or later Council of Ministers.  Not to  decide the issues squarely raised in this appeal  merely because  of  the appellant and the  1st  respondent,  having exchanged assurances, if any, is to leave the jural area  in twilight with lamp in hand.  Indeed the issues of semantics and  modalities raised in respect of Art. 222 and  the  fair play implied in its mechanics, where orders constitutionally draped, but challenged as expression of executive  obliquely survive even after the exit of this appears [479 B-C, 480 A- B] 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. [503 G-H] Don  John Francis Douglas Liyanange v. The Queen,  [1967]  1 A.C. 259, Followed. 2.Statutory interpretation of one clause may, in a sense, affect  the fasciculus of "judicial" clauses in the  various parts   of   the  constitution.   Preceding  to   decide   a constitutional clause in an organic code, juristic technique has  to  be  perceptive, spacious,  creative,  not  narrowly grammatical,  lexicographically  podantic  or  traditionally blinkered. [483 A-B, C] 3.Legislative  history plus, within circumspect limits,  may be consulted by courtsto  resolve  ambiguities,   warning themselves  that the easy abuses of legislative history  and like  matrix  material  may  lead  to  the  vice  of  occult uncertainty and interesting of legislative power from  where it belongs.  While understanding and interpreting a statute, a fortiori a constitutional code, the roots of the past, the foilage  of the present and the seeds of the future must  be

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within the ken, of the activist judge. [487 B-C, F] 43 2 While it is true that judicial interpretation should not  be imprisoned  in  verbalism and words lose their  thrust  when read  in  vacuo,  the  Court  must  search  for  a  reliable scientific  method of discovery rather than the  speculative quest for the spirit of the statutes and the  cross-thoughts from legislator’s lips or Law Commission’s pens.  They edify but are not edictal. [488 B] When  the clauses of a Constitution to be construed  are  so cardinal  as to affect the basic structure of  the  national charter  viz.  the independence of judiciary, to  dissect  a constitutional  provision  meticulously  as  if  it  were  a cadaver  is to miss the life of the charter.  To change  the metaphor,  then  the  arrow hits a mark  "the  archer  never meant".   Words  used designedly by  trained  draftsmen  and authenticated  by  purposeful  legislators  must  possess  a mandate.[487 B 489 E] Attorney  General  v.  Prince Ernest  Augustus  of  Hanover, [1957] A.C. 436 at 461; Pine Hill Coal Co. v. United States, 259  U.S. 191, 196; River Wear Commissioners v.  Adamson,  2 App.  Court 743 HL 1877; Schegman Bros V. Calvert Distillers Corpn. 341, U.S. p. 384 395-397; Hertton v. Phillips 45  Del 156-70  A  2d 15 (1949); A. P. Green Export  Co.  v.  United States  285 F. 2d 383, 386, Town of Menomines v. Skubits  53 Wis.  2d 430, 437, Quoted with approval, State of Mysore  v. R.  V. Bidap, [1974] 3 S.C.C. 337; Datatraya Govind  Mahajan v. State of Maharashtra, [1977] 2 S.C.C. 548 referred to. 4.To rewrite the Constitution by the art of construction, passionately impelledby contemporary events, is  unwittingly to  distort the judicature scheme our founders planned  with thoughtful care and inset into words what plain English  and plainer  context cannot sustain.  Ample as  judicial  powers are  they  must be exercised with the sobering  thought  jus dicer et non jus dare (to declare the law, not to make  it). [501 C-D] 5.A  mere convention based on several considerations  can not be taken as conclusive of the scope of the Article, when the  Court  interprets a constitutional  provision.   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. In  cases  where the judge does not consent and  the  public interest compels, the power under Art. 222 can be exercised. [501 D-E] 6.The  power  of non-consentaneous transfer  does  exist. Salutory safe-guardsto  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  perniciousness were  all  in  the  calculations  of  the  framers  of   the Constitution.  It is not possible to read the word "consent" in  Art. 222 on a construction of the plain and  unambiguous language of the Article. [497 G, 503 D-E] 7.The  impact  of  other Articles,  the  embrace  of  the independence   creed,   the  influence   of   administrative precedents  and  the explosive allergy to the  plurality  of transfers  which  were  not  before  the  Court  cannot   be permitted to subjectify judicial construction to invite  the comment  "Thy  wish  was  father......  to  that   thought". Charity  to  the capacity of the  illustrations  dead  whose learned  toils and deliberate pens drafted Art. 222  behaves

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us  not to stultify them in their silent graves by  slurring over  the  express  language interpretatively  co  invent  a hidden veto power. [501 F-G] Nokes v. Don Caster Amalgamated Collieries Ltd. 1940 AC 1014 Referred to. 8.Where  the first principle of justice to the  community is  contradicted  by  the  continuance  of  a  judge  in   a particular state, the ’independence’ principle will have  to be harmonised with the cause of compelling public  interest. Indeed  the  independence  of  the  judiciary  is  itself  a necessitous   desideratum   of  public   interest   and   so interference  with  it is impermissible except  where  other considerations  of  public  interest are so  strong  and  so exercised as not to militate seriously against the free flow of public justice.  Such a balanced blend 433 is  the  happy solution of a delicate complex,  subtle,  yet challenging  issue  which bears on human  rights  and  human justice.   The power under Art. 222 is to be exercised  only exceptionally  and in public interests and where it  becomes expedient  and necessary in the public interest,  especially of judicial administration, effective consultation with  the Chief  Justice  of India, as a sine qua non, takes  care  of executive intrusions. [491 G, H, 492 A,           500  G] 9.  The  terms "appointment" and "transfer" as used  in  the Constitution are not     interchangeable conveying the  same meaning.  An analysis of Art. 217(1) (c)     shows that  the constitutional  provision  makes  a  clear-cut   distinction between ’appointment’ and ’transfer’. [498 F, G, 499 A] 10.Strictly speaking, when a judge is transferred from one High Court to anotherunder  the clear sanction  of  law, namely, Art. 222(1) of the Constitution, afresh  oath  is not  necessary.  But even if on a liberal interpretation  of Art.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  be transferred without his consent. [499 C-D] 11.The  consultation,  in order to  fulfil  its  normative function  in  Art.  222(1) must  be  real,  substantial  and effective  consultation based on full and  proper  materials placed  before  the Chief Justice by  the  Government.   The President  must  communicate to the Chief  Justice  all  the materials  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 President such counsel of action as  he thinks  will  further the public  interest,  especially  the cause of the justice system.  Before giving his opinion, the Chief  Justice  of India may informally ascertain  from  the judge  concerned if he has any real personal  difficulty  or any  humanitarian  ground on which his transfer may  not  be directed.   Although  the opinion of the  Chief  Justice  of India  may not be binding on the Government, it is  entitled to  great  weight  and is normally to  be  accepted  by  the Government  because  the  power under  Art.  222  cannot  be exercised whimsically or arbitrarily. [501 G-H, 502 A-C] Chandramouleshwar  Prasad  v.  Patna High  Court,  [1970]  2 S.C.R.  666; Shamsher Singh v. State of Punjab, A.I.R.  1974 S.C. 2192 referred to. Per Untwalia J. 1.Once  the important points of great constitutional  and public  importance have been raised and argued,  though  the

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appeal  under Art.136 could be allowed to stand disposed  of finally  on  the  basis of the consent order  alone,  it  is necessary  and  expedient  for the Court  to  pronounce  its judgement. [505 A-B] Ardeshir  Mama  v.  Flora  Sasoon  55  Indian  Appeals  360, Followed.  Dissenting from the majority. HELD: 2.The  word  "transfer" has been used in proviso  (c)  of Art.  217 (1) and Art. 222(1) because the transfer  is  from one  High Court to another Is a High Court Judge and not  to any  superior Court.  The effect of the transfer is to  make the judge transferred to vacate his office of a judge of the High  Court from which he is transferred and to appoint  him as  a judge of the High Court of another State. [511 H,  512 A] 3.A  transferred  judge  cannot become  a  judge  without taking his fresh oath in accordance with Art. 219 and in the form prescribed in the Third Schedule.  Nor can be compelled to vacate his office of the Judge of the High Court to which he  was initially appointed and assume office as a judge  of another High Court without his consent. [512 E, 513 E] 4-930 SCI/77 43 4 4.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 the High  Court  to  which he was appointed and  to  accept  the office  of the Judge of the Supreme Court or the High  Court without  his  consent,  until and unless a  special  law  of procedure  has been made or prescribed guarding against  any inroad on the independence of the judiciary. [513 G-H] Rondel v. Worsley, [1960] 1 A.C. 191; Quoted with  approval. [Concurring with Chandrachud, J.] 5.No  order  of  transfer can be made  by  the  President without the consultationwith  the Chief Justice  of  India. Such a consultation is a condition precedentto  the  making of the order.  All necessary facts in support of the pro- posed action of transfer must be communicated to him and all his  doubts and queries must be adequately answered  by  the Government.  It will be open to the Chief Justice of  India, rather,  he  will  be well advised to do so,  to  make  such inquiries  and from such quarters as he may think  fit  and. proposes  to  do  in order to satisfy  himself  apropos  the desirability, advisability and the necessity of the proposed transfer.   Inquiries  from  any of his  colleagues  in  the Supreme  Court and especially the one coming from  the  High Court,  a judge which is proposed to be transferred as  also from  the  concerned  judge will be  highly  beneficial  and useful.   Ordinarily  and generally the views of  the  Chief Justice of India ought to prevail and must be accepted.  The Government, however, is not bound to accept and act upon the advice of the Chief Justice.  It may differ from him and for cogent  reasons may take a contrary view.  In  other  words, the  advice is not binding on the Government invariably  and as a matter of compulsion in law. [506 B-D] Cliandramouleshwar  Prasad  v.  Patna High  Court  and  Ors. [1970] 2 S.C.R. 666; Applied. 6.To invoke the principle of natural justice in the  case of transfer of a Judge under Art. 222(1). if otherwise it is permissible to make the transfer without his consent will be stretching the principle to a breaking point. [506-E]

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JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1486  of 1976. From the Judgment and Order dated the 4th November, 1976  of the Gujarat High Court in Special Civil Application No.  911 of 1976. S.Y. Gupte, Attorney General, R. P. Bhatt, R. N. Sachthey and Miss A. Subhashini for the Appellant. H.   M.  Seervai,  B.  R. Agarwala  and  Janendra  Lal,  for Respondent No. 1.                            ORDER We  have heard the learned Attorney-General and Mr.  Seervai fully  on  the various, points arising in this  appeal.   We will deal with the arguments of the learned counsel later by a considered judgment or judgments.  For the present we will only say that since we are informed, that the parties to the appeal have arrived at a settlement, the appeal shall  stand disposed of in terms of that settlement.  Those terms 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.               43 5               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 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 :               (1)   The   order  was  passed   without   his               consent:  such  consent  must  be  necessarily               implied in article 222(1) of the  Constitution               and therefore the transfer of a Judge from one               High Court to. another High Court without  his               consent is unconstitutional;               (ii)The  order was passed in breach  of  the               assurance given on behalf of the Government of

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             India by the then Law Minister Shri A. K.  Sen               who,  while  moving  the  Constitution   (15th               Amendment)  Act,  1963 said in the  Lok  Sabha               that  "so  far  as  High  Court  Judges   were               concerned,  they  should  not  be  transferred               excepting  by  consent".   Mr.  Sheth   having               accepted  judgeship of the Gujarat High  Court               on  April  23, 1969 on the faith  of  the  Law               Minister’s assurance, the Government of  India               was bound by that assurance on the doctrine of               promissory estoppel;                (iii)The  order  of  transfer  mitigated               against public interest.  The power  conferred               by  article  222(1)  was  conditioned  by  the               existence and requirement of public  interest,               and since the impugned transfer was               4 3 6               not   shown  to  have  been  made  in   public               interest, it was ultra vires; and               (iv)The  order was passed without  effective               consultation with the Chief Justice of  India.               ’Consultation’   in   article   222(1)   means               "effective consultation"            and  since               the    precondition    of    article    222(1)               that  no  transfer can be  made  without  such               consultation was not fulfilled, the order  was               bad and of no effect. The  Union of India was respondent 1 to the  petition  while Shri A. N. Ray, Chief Justice of India, or his successor-in- office  was  impleaded as respondent 2. The Union  of  India filed   a   counter-affidavit   repudiating   the    factual allegations  made  by  Mr. Sheth in his  writ  petition  and disputing the validity of his legal contentions.  The  Chief Justice  of  India  did not file any  affidavit  and  beyond appearing  through  the Addl.  Solicitor General,  who  also represented  the  Union Government, he took no part  in  the proceedings. The,  writ  petition was heard by a special Bench  of  three Judges,  Justice J. B. Mehta, A. D. Desai and D.  A.  Desai. They  unanimously  rejected the challenge to  the  order  of transfer  on the ground of promissory estoppel.  As  regards the first ground, J. B. Mehta and D. A. Desai, JJ. held that the  order was not void for want of Mr. Sheth’s  consent  to his  transfer.  A. D. Desai J., however, took the view  that the Judge of a High Court cannot be transferred without  his consent.  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 ?  What are the conditions for the

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exercise  of  such  a  discretionary  power  ?  Have   these conditions been fulfilled ? What is the scope and nature  of consultation as envisaged by Art. 222(1)?" Referring to  the "mass transfers" of 16 Judges which were effected with  "one stroke",  though each Judge may have bad  peculiar  personal difficulties to contend with, and considering that the Union of  India bad failed to disclose the "nature and content  of the  consultation"  with  the Chief Justice  of  India,  the learned  Judge  concluded  that the  consultation  was  riot meaningful.   He  set aside the order observing,  that  "the bead  of  the Judiciary does not appear to have  taken  into considera- 437 tion all  the  relevant data when  he  was  consulted  and therefore,  it  is an inescapable conclusion ....  that  the transfer  order for want of consultation as required by  the Constitution is void". The  High  Court  has  granted  to  the  Union  of  India  a certificate   under   articles  132  and   133(1)   of   the Constitution to appeal to this Court.  The Union  Government has  filed  this appeal on the basis  of  that  certificate, impleading Justice S. H. Sheth as respondent I and the Chief Justice of India as respondent 2. During  the hearing of the writ petition in the High  Court, the  Union  of  India  raised  an  objection  to  the  three particular Judges hearing the matter on the ground of  bias. That  objection was overruled by the Court and  fortunately, the  learned Attorney-General has spared us from  having  to consider  that untenable contention by stating that he  does not  want to caanvas it.  Since Mr. Seervai,  apppearing  on behalf  of respondent 1, has not pressed the, contention  as regards  promissory estoppel, it is unnecessary  to  examine that point also.  Mr.  Seervai put the point of consent in the forefront  and wove the brunt of his argument around it.  Article 222(1) of the Constitution does not speak of consent.  It provides :               "The  President may, after  consultation  with               the  Chief Justice of India, transfer a  Judge               from one High Court to any other High Court." But the learned counsel contends that the power conferred by the  article  is, by necessary implication, subject  to  the precondition   that  the  Judge  who  is  proposed   to   be transferred  must consent to his transfer.  The  fundamental basis   underlying   this  contention   is   that   judicial independence  can  be  undermined by vesting  the  power  of transferring  a Judge in the executive and  therefore,  the, transfer of High Court Judges from one High Court to another Without  their  consent  is  calculated  to  undermine   the independence  of the High Court Judges.  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

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             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               438               a   Judge   would   gravely   undermine    the               independence  of the judiciary because,  human               nature  being  what it is, a large  number  of               Judges would, consciously or unconsciously, be               induced  to fall in line with the  wishes  and               policies of the executive government.               (2)   It  would be a surprising  anomaly  that               the transfer of subordinate judges, as decided               by the Supreme Court in several cases,  should               be exclusively within the control of the  High               Court in order to ensure that those judges are               immune from the exercise of improper pressures               by  the executive, whereas High  Court  Judges               themselves,   for   whose   independence   the               Constitution  has made copious  and  elaborate               provisions, should be left to the mercy of the               executive.               (3)   The  requirement of article 222(1)  that               the  President must consult the Chief  Justice               of India before transferring a Judge does  not               answer   the  problem  because,  even   though               consultation  with the Chief Justice is not  a               matter  of  formally,  the  final  world,   in               practice, always rests with the executive.               (4)   Assuming  that the President’s power  to               transfer  a High Court Judge would be  reduced               to a dead letter that power is made to  depend               upon  the Judge’s consent, if the  choice  lay               between  depriving  numerous articles  of  the               Constitution    designed   to    secure    the               independence of the judiciary of their content               and,  on  the other  hand,  depriving  article               222(1)  of  its practical effect,  the  second               alternative ought to and must be preferred.               (5)   The oath which a Judge of the High Court               has  to  take,  as  prescribed  by  the  Third               Schedule,  clause  VIII of  the  Constitution,               that he will perform the duties of his  office               "without fear or favour", an expression  which               was absent in the form of the oath  prescribed               by Schedule IV to the Government of India Act,               1935,  will  not only become  meaningless  but               will  be  impossible to fufil  unless  it  was               placed out of the power of the legislature  or               the executive to secure favors from a Judge by               putting  him in fear of the injury  which  can               easily  be inflicted upon him by  transferring               him from one High Court to another.               (6)   Even  assuming  that transfers  of  High               Court Judges are necessary in the interests of               national  integration,  it cannot  be  ignored               that independence of the High Court Judges  is               the highest public interest, particularly in a               federal  or  quasi-federal  Constitution  like               ours  and if there is a conflict of  interest,               the high principle of the independence of  the                             judiciary  must  prevail  over  the   amorphou s               concept of national integration.               439

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             (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               harmoniously  with the various  constitutional               provisions  which are enacted  in  order  to               secure   judicial   independence.    A    non-               consensual transfer will provide the executive               With  a potent weapon to punish the Judge  who               does not toe its line and thereby destroy  the               independence of the judiciary.               (9)   Of no word can one say that it is  clear               and  unambiguous  unless one reads  the  whole               document   in   which   that   word    occurs.               "Transfer",  in  the  context  of  the  entire               constitutional   scheme  becomes  a  word   of               doubtful  import.  If a  vital  constitutional               principle is going to be violated by putting a               wider construction on that expression, it must               receive  a  narrow, restricted meaning  ;  and               lastly,               (10)  Such  a narrow interpretation  will  not               deprive the article of its practical  efficacy               or  reduce  it to dead letter because,  as a               matter   of  fact,  nearly  25   Judges   were               transferred  with  their  consent  since   the               inception  of the Constitution.  It was  only               during the emergency, when every safeguard  of               liberty  bad gone, that mass transfer of  High               Court Judges were resorted to by the executive               on  grounds unconnected with the  requirements               of public interest. The  learned  Attorney-General  does not  dispute  that  the greatest care ought to be taken to preserve the independence of  the  judiciary  which  the  Constitution  so   copiously protects.   Nor  does  he  join issue  on  the  question  of hardship which a transfer ordinarily entails.  He,  however, contends  that  the word ’transfer which occurs  in  article 222(1) 440 is not an expression of ambiguous import, that there is  no. justification  for reading the precondition of ’consent’  in the article which is not to be found therein and that,  even assuming  for the purposes of argument that a Judge  has  to

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take a fresh oath before taking office in the High Court to which he is transferred, ’transfer’ does not involve a fresh appointment.  Therefore, it is not necessary to, obtain  the consent of the Judge to his transfer from one High Court  to another.   On  the question of consultation with  the  Chief Justice of India, the Attorney General did not labour at any length.   Indeed, Mr. Seervai himself did not expatiate,  on that question.  The drift of the Union’s submission is  that consultation  with  the  Chief Justice can  be  an  adequate safeguard  against  arbitrary transfers.  We  will  have  to consider  carefully  the  question  as  to  what  the   term ’consultation’  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 on the literal aspects of meaning has  provoked today’s  reactionary  underemphasis  on  them",  says   Reed Dickerson in his innovative work on "The Interpretation  and Application of Statutes"(1), but "A wholesome resistance  to the   excesses  of  liberalism  need  not   exaggerate   the uncertainties  of  language nor distort the proper  role  or range of judicial discretion." (pag 4). In  the  United  States  of  America,  Judges  like   George Sutherland  and Hugo Black have made fervent pleas that  the Court  must read the constitutional clauses  literally.   In Home   Building  and  Loan  Association  v.’   Blaisdell(2). Justice  Sutherland in his dissenting opinion said that  "If the  provisions of the Constitution be not upheld when  they pinch  as  well as when they comfort, they may  as  well  be abandoned."  In  Griswold v. Connecticut(3)  Justice  Black, also in a dissent, said that "one of the most effective ways of diluting or expanding a constitutionally guaranteed right is  to  substitute  for  the crucial  word  or  words  of  a constitutional  grantee another word or words more  or  less flexible  and  more or less restricted  in  meaning."  Other Judges  like  Benjamin  Cardozo have  said  that  one  draws precise meaning, (1)Little, Brown and Company, Boston; Tortonto.  Ed. 1975 (2) 78 L. Ed. 413 (1934) (3) 14 L. Ed. 2d 510 (1965) 44 1 from  a document as vaguely worded as the Constitution  only by  first reading values into its clauses.  And by a  famous formulation,  Justice Frankfurter said in  Massachusetts  S. Insurance  Co.  v. U.S.(1) that "there is no  surer  way  to misread  a document than to read it literally." But this  is not  to  be  taken too literally.  "The hard  truth  of  the matter  is  that  American  Courts  have  no   intelligible,

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generally  accepted,  and  consistently  applied  theory  of statutory interpretation." (2) The normal rule of interpretation is that the words used  by the legislature are generally a safeguard to its  intention. Lord Reid in Westminster Bank Ltd. v. Zang(3) observed  that "no  principle of interpretation of statutes is more  firmly settled  than  the  rule  that the  Court  must  deduce  the intention  of  Parliament from the words used in  the  Act." Applying  such  a  rule, this Court  observed  in  S.  Nara- yanaswami  v. G. Panneerselyam(4) that "where the  statute’s meaning   is   clear   and   explicit,   words   cannot   be interpolated."  What  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, therefore, "Courts are very reluctant to substitute words in a statute or to add words to it, and  it has  been  said that they will only do so where there  is  a repugnancy  to good sense."(5) In the view which I  am  dis- posed  to  take,  it  is  unnecessary  to  dwell  upon  Lord Denning’s  edict in Seaford Court Estates Ltd.  v.  Asher(6) that  when  a defect appears in a statute,  a  Judge  cannot simply fold his hands and blame the draftsman, that he  must supplement the written word so as to give force and life  to the  intention  of the legislature and that  he  should  ask himself  the  question  how, if the makers of  the  Act  had themselves come across the (1)  (1956) 352 U.S. 128 at 138. (2)  H. Hart, Jr. & A. sacks, The Legal/Process 1201 (tentative edition 1958), quoted at p. I by Reed  Dickerson, as  a legend to Chapter I : "Is There a Problem ?", of  "The Interpretation and Application of Statutes". (3)  (1966) A.C. 182. (4)  AIR 1972 SC 2284 (at 2290) (5)  AIR 1961 SC 1 107 (at III 5) (6)  (1949) 2 All E.R. 155 (at p. 164) 442 particular  ruck  in  the texture of  it,  they  would  have straightened it out.  I may only add, though even that  does not apply, that Lord Denning wound up by saying, may be  not by  way  of  recanting, that "a Judge: must  not  alter  the material  of which the Act is woven, but he can  and  should iron out the creases." The   sheet  anchor  of  Mr.  Seervai’s  argument  is   that independence  of  the  judiciary  is  one  of  the  cardinal features of our Constitution, that the Constitution has made

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elaborate provisions to secure the freedom of the  judiciary from executive interference and that, if a High Court  Judge is  allowed  to  be transferred  without  his  consent,  the independence of the judiciary will be gravely imperilled and constitutional   provisions,   designed  to   protect   that independence  will be denuded of their meaning and  content. Transfer, according to the counsel, must therefore be  taken to  mean  consensual  migration, as  opposed  to  compulsive shifting, of a Judge from one High Court to another.  It  is beyond question that independence of the judiciary is one of foremost  concerns  of our  Constitution.   The  Constituent Assembly showed great solicitude for the attainment of  that ideal, devoting more hours of debate to that subject than to any other aspect of the judicial provisions : "If the beacon of  the Judiciary was to remain bright, the courts  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 executive in the public services  of the  State.   The form of oath prescribed  by  clause  VIII, Third  Schedule of the Constitution for a Judge or  a  Chief Justice  of  the High Court requires him to affirm  that  he will  perform  the  duties of his office  "without  fear  or favour,  affection or illwill." The words "without  fear  or favour"   were  added  by  the  Constitution  to  the   oath prescribed  for Judges and Chief Justices of High  Court  by the  Fourth  Schedule, clause 4 of the Government  of  India Act, 1935.  By article 202(3) (d), expenditure in respect of the salaries and allowances of High Court Judges is  charged oil  the  Consolidated  Fund of each  State.   The  pensions payable to High Court Judges are charged on the Consolidated Fund of India under article 112(3) (d) (iii).  By virtue  of article 203 (1), the salaries and (1)  The  Indian Constitution : Cornerstone of a  Nation  by Granville Austin (p.164-165) Ed. 1972 443 allowances  are not subject to the vote of  the  Legislative Assembly  and, by virtue of article 113 (1 ),  the  pensions are  not  subject to the vote of the Parliament.   The  High Court  Judges, by article 221 (1), are entitled to  be  paid the  salaries which are specified in the Second Schedule  to the Constitution.  Evidently, such salaries cannot be varied without  an amendment of the Constitution.   Further,  under the  proviso to article 221 (2), neither the  allowances  of the  Judge nor his rights in respect of leave of absence  or pension  can  be  varied  to  his  disadvantage  after   his appointment.  The relevant part of article 211 provides that no  discussion  shall take place in the,  legislature  of  a

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State with respect to theconduct of any Judge of a High Court in the discharge of his duties. Article  215   makes every High Court a court ’of record and confersupon    it all the powers of such a court including the power to punish for contempt of itself.  Judges of the High Court, by  arti- cles  2 1 7 ( 1 ), hold their tenure until they  attain  the age  of  62  and  not at  the  pleasure  of  the  President. Appointments of officers and servants of a High Court are to be  made  under article 229(1) by the Chief Justice  of  the High  Court or such other Judge or officer of the  Court  as may  direct.   By  sub-clause  (2)  of  that  article,   the conditions  of  service of officers and servants of  a  High Court  shall, subject to the provisions of any law  made  by the  legislature of the State, be such as may 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   to arranging  the  day-to-day work of the  subordinate  courts. Thus,  the  ’control’ envisaged by article  235  comprehends control  over the conduct and discipline of District  Judges (State  of  West Bengal v. Nrindera  Nath  Bagchi(1);  their further  promotions  and confirmations (State  of  Assam  v. Kuseswar  (2)  and  Joginder Nath v.  Union  of  India  (3); disputes regarding their seniority (State of Bihar v.  Madan Mohan(4);   their  transfers  (State  of  Assam   v.   Ranga Muhammad)(5); the placing of their services at the  disposal of  the Government for an ex-cadre post (State of Orissa  v. Sudhansu  Sekhar Misra (6) ; considering their  fitness  for being retained in service      (1) [1966] 1 SCR 77 1.(2) AIR 1970 SC 16 16.      (3) AIR 1975 SC 514.(4) AIR 1976 SC 404      (5) [1967]1 1 SCR 454.(6) [1968] 2 SCR 154. 444 and recommending their discharge from service (Ram Gopal  v. State   of   Madhya   Pradesh(1);   exercise   of   complete disciplinary jurisdiction over them including initiation  of disciplinary  inquiries  (Punjab and Haryana High  Court  v. State  of  Haryana)  (2) ; and  their  premature  retirement (State  of Haryana v. Inder Prakash) (3).  The last  of  the cases  in this line is the recent judgment of this Court  in Shamasher Singh v. State of Punjab (4) in which the  learned Chief  Justice, delivering the leading judgment, observed  : "The members of the subordinate judiciary are not only under the  control of the High Court but are also under  the  care and  custody of the High Court.  "By a concurring  judgment, Krishna  Iyer J. said on behalf of Bhagwati J.  and  himself that   fearless  justice  is  a  prominent  creed   of   our

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Constitution and that "the independence of the judiciary  is the fighting faith of our founding document." Unquestionably,  the  fundamental principle on  which  these constitutional  provisions  and  decisions  rest  cannot  be allowed  to be violated or diluted, directly or  indirectly. But   then  the  question  is  :  Is  there  any   need   or justification,  in order to uphold and protect the  indepen- dence  of the judiciary, for construing article 222  (1)  to mean that a Judge cannot be transferred from one High  Court to another without his consent?  I think not.  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 or who, for some 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 cal- culated  to defeat or destroy in one stroke the  object  and purpose  of the various provisions conceived with such  care to  insulate the judiciary from the influence and  pressures of  the executive.  The power to punish a High Court  Judge, if  one may so describe it, is to be found only  in  article 218  read with articles 124(4) and (5) of  the  Constitution under  which a Judge of the High Court can be  removed  from his  office  by an order of the President  passed  after  an address by each House of Parliament, supported by a majority of  the total membership of that House and by a majority  of not  less  than  two-thirds of the  members  of  that  House present  and voting, has been presented to the President  in the  same session for such removal, on the ground of  proved misbehavior or incapacity.    Thus,  if  the  power  of  the President, who has to act on the advice of   the Council  of Ministers, to transfer a High Court ,Judge under article 222 (1)  is  strictly  limited to cases in  which  the  transfer becomes  necessary in order to subserve public interest,  in other  words, if it be true that the President has no  power to  transfer a High Court Judge for reasons not  hearing  on public interest but arising out of whim, caprice or fancy of the  executive or its desire to bend a Judge to its own  way of thinking, there is no possibility of any interference (1)  [1970] 1 SCR 472. (3)  AIR 1976 SC 1841 (2)  AIR 1975 SC 613. (4)  [1975] 1 SCR 814. 445 with  the  independence  of  the judiciary  if  a  Judge  is transferred without his consent. Once  it  is  appreciated that a High  Court  Judge  can  be transferred  on  the  ground of public  interest  only,  the apprehension  that  the  executive  may  use  the  power  of transfer  for  its own ulterior ends and  thereby  interfere with the independence of the judiciary, loses its force.  It is  true  that  a challenge to an order  of  transfer  under article 226 of the Constitution would involve much time  and expense which a Judge can ill-afford.   But it is  notorious that court proceedings involve time and expense which  often exceed   the  capacity  of  the  litigants,  The   hardship, embarrassment  or  inconvenience  resulting to  a  Judge  by reason  of his being compelled to become a litigant  in  his own  court,  cannot  justify the addition  of  words  to  an

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article   of   the  Constitution  making  tits   consent   a precondition of his transfer. In adding such words, we  will be  confusing our own policy views with the command  of  the Constitution.   But  we  hope and trust that  in  his  fight against  an  overbearing executive, the Judge  will  not  be waging  a one or unequal battle.  The ink on recent  history is still not dry and its pages contain a tribute to the gen- tlemen standing in black robes who, though small in  number, championed  public causes with a courage  which  dumbfounded even  that world in which Martin Luther King and  Lord  Coke had  lived  and  died.In fact, the missionary  zeal  of  Mr. Sheth’s counsel is by itself enough assurance that Judges in distress, in their unequal contest with the executives  will not  fail  to receive the assistance and  attention  of  the illustrious at tile bar. In this view of the matter, it is unnecessary to consider at any  length the decisions cited by Mr. Seervai 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 actually used in the statute  did not  mean  that  the  decision  must  rest  on  the  literal interpretation  of  the  words in  disregard  of  all  other material  :  "To arrive at the real meaning,  it  is  always necessary  to get an exact conception of the aim, scope  and object of the whole Act". (P. 936). In  Prince Ernest Augustus of Hanover (supra) a great  great grandson of Ernest, Duke of Cumberland, who succeded to  the throne of (1)  [1957] SCR930(at p. 936) (2)  [1957] A.C. 436 (at pp. 460-461) (3)  [1876-77] A.C. 743 (at pp. 764-767) 4 46 Hanover in 1837, sought a declaration that he was a  British subject  by  virtue of the statute of 1705, 4  Anne,  c.  4. Viscount  Simonds, accepting the claim, said in  his  speech that "words, and particularly general words, cannot be  read in  isolation : their colour and content are  derived  front their context. (p. 461). In  River Wear Commissioners, (supra) the  Harbours,  Docks, and  Piers  Act, 1847 enacted, broadly, that  the  owner  of every vessel shall be answerable to the undertakers for  any damage  done to the Harbor by such vessel or by  any  person employed  about  the  same, and that the  master  or  person having the charge of such vessel, through whose wailful  act or negligence any such. damage is done, shall also be liable to  make  good  the same.  Lord Blackburn  observed  in  his speech  that  the golden rule of construction was  that  one

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must  "take the whole statute together and construe  it  all together,  giving  the words their  ordinary  signification, unless when so applied they produce an inconsistency, or  an absurdity or inconvenience so great as to convince the Court that the intention could not have been to use them in  their ordinary signification, and to justify the Court in  putting on them some other signification, which, though less proper, is  one  which the Court thinks the words will  bear."  (pp. 764-765). Since  I have taken the view that a High Court Judge  cannot be  transferred as a matter of punishment, as  for  example, for  the  views  which  he bona  fide  holds  and  that  his transfer,  being conditioned by the requirements  of  public interest,  cannot be effected for an extraneous purpose,  it is  unnecessary to extend to the instant case the  ratio  of these  decisions.  It is needless, in a broad sense, to  cut down the width of the words used in article 222(1) by making the power of transfer dependent on the consent of the  Judge himself.   It is also needless, in order to  effectuate  the object  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 that if  the choice  is between two alternative evils, we  should  Prefer the  construction which will not impair the efficacy of  the various safeguards created by the Constitution for unfolding the independence of the judiciary and reject the other which will  enable  a Judge to be transferred in  a  few  isolated cases of the type described above.  This argument loses  its force  and validity in view of my holding that the  transfer of a High 44 7 Court  Judge without his consent Will not damage or  destroy the provisions contained in the Constitution for  preserving the independence of the judiciary. Mr. Seervai relies upon a judgment of the House of Lords  in Rondel v. Worslay(1) where a litigant asked for damages  for professional  negligence from his counsel.  On the  question whether  an action for negligence lies against a  barrister, it was held that the immunity of a barrister from an  action for negligence at the suit of ,his client in respect of  his conduct and management of a cause in court was not based  on the, absence of a contract between the barrister ,and client but  on public policy and long usage in that, the  interests of  administration  of  justice required  that  a  barrister should  be  able  to  carry out his  duties  to  the,  court fearlessly and independently.  Lord Reid said in his  speech that  like  so  many  questions  which  raised  the  ,public interest,  ’a decision one way was likely to cause  hardship

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to individuals, while a decision the other way would involve disadvantage  to the public interest.  The issue,  according to the learned Law Lord, therefore was whether the abolition of  the rule of immunity would probably be attended by  such disadvantage to the public interest as to make its retention clearly  justifiable (p. 228).  Lord Pearce observed in  his speech that to remove the immunity of a barrister from being sued  for negligence would create a great injury to  justice and,  therefore, the immunity should be upheld (p. 268)  and that  though it would appear to some that rule  of  immunity creates  many hardships for which there was no  relief,  yet the  rule  was consciously and consistently adopted  by  the English courts, "in order that a greater ill may be avoided, namely,   the  hampering  and  weakening  of  the   judicial process."  (p. 270).  The five judgments in  Rondel(1)  show the  anxiety of courts to overlook an evil in order  that  a greater evil may be avoided.  But this consideration 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 new office as a result of a  fresh  appointment.  The simple fact is that a  Judge  is transferred  to another High Court, not appointed once  over again as a Judge of (1)  [1969] 1 A.C. 191 (at pp. 228,268, 270) 44 8 a  High Court or even as a Judge of the High Court to  which he  is  transferred, The reason why he has to take  a  fresh oath upon being transferred to; another High Court is to  be traced  to  the form of the oath prescribed for  High  Court Judges   under   clause   VIII,  Third   Schedule   of   the Constitution.  The form of oath prescribed by that clause is "I,  A.B., having been appointed Chief Justice (or a  Judge) of  the  High Court at (or of).... do swear in the  name  of God/  solemnly  affirm  that  I will  bear  true  faith  and allegiance to the Constitution of India. . . . ". Since  the oath  is required to be taken by a High Court Judge  in  his capacity  as  a  Judge of a named  High  Court,  it  becomes necessary for him to take a fresh oath on being  transferred to  another High Court.  The circumstances, therefore,  that the Judge takes a fresh oath does not support the  inference that  he  goes to another High Court under a  new  or  fresh appointment. It is important to notice that when. a Judge is  transferred from one High Court to another, the President merely  issues a  notification under article 222 (1) of  the  Constitution. He does not issue a warrant of appointment as he is required to  do  under article 217 (1), when a person,  is  initially

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appointed  as  a Judge of a particular High  Court.   It  is important further, that in the case of a new appointment the President  is  required by ’article 217(1)  to  consult  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.   Article 222(1)  provides  for one prescription only  :  Consultation with the Chief Justice of India.  No one has ever suggested, though  that is not conclusive, that the transfer, being  in the  nature  of a fresh appointment, must  comply  with  the requirements of article 217(1). Relying upon the observations of Venkatarama Aiyar J. in  M. P.  V. Sundararamier v. State of Andhra Pradesh(1),  counsel argues  that the provisions of our ’Constitution have to  be read in the light of the Government of India Act, 1935 since the  Constitution has adopted the basic scheme of that  Act. Clause  (c)  of  the  proviso  to  section  222(2)  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 India Act spoke of a Judge being "apointed" to be a Judge of another High Court.  Clause (c) of the proviso to  article  193(1)  of  the  draft  Constitution  of  India contained a similar provision to the effect that "the office of the Judge shall be vacated by his being appointed by  the President to be a Judge of the Supreme Court or of any other High Court".  The draft Constitution too did not contain any provision  for  transferring a High Court  Judge.   But  the drafting  Committee  incorporated  a  provision  in  article 222(1)  of the Constitution providing for the transfer of  a Judge  from one High Court to another.   Significantly,  the use  of the expression ’appointed’ was scrupulously  avoided in that behalf.  Clause (c) of the proviso to article 217(1) reads to say that "the office of a Judge shall be vacated by his  being appointed by the President to be a Judge  of  the Supreme  Court or by his being transferred by the  President to  any  other  High Court" (emphasis  supplied).   In  this legislative  background  and seeing that clause  (c)  itself makes a distinction between appointment and transfer, I find it difficult to accept the contention that the two mean  one and the same thing.  They connote two distinct concepts  and one is not to be confused with the other. It may be stated that when the consent of a High Court Judge was  thought  necessary,  the  Constitution  has  said   so. Article 224A provides that the Chief Justice of a High Court for  any  State  may,  with  the  previous  consent  of  the

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President,  request any person who has held the office of  a Judge of a High Court to sit and act as a Judge of the  High Court for that State.  The proviso to the article, which  is relevant  for our purpose, says that nothing in the  article shall  be deemed to require any such person as aforesaid  to sit  and  act  as a Judge of that  High  Court,  "unless  he consents so to do".  This consideration has, however its own limitations  and cannot be carried too far.  A Judge of  the High  Court  cannot,  surely, be  compelled  to  work  after retirement,  which explains the necessity for obtaining  his consent.   Even a Government servant cannot be compelled  to rejoin his duties after retirement.  Much less a High  Court Judge. Finally, in a reverse way, reliance is placed by the learned counsel  on  section  2(c) (iii) of the  High  Court  Judges (Conditions   Of  Service) Act, 1954 which  defines  ’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/77 450 governing    service    conditions   cannot    affect    the interpretation  of  a  substantive provision  like  the  one contained in article-222(1). Two  things  remain to be considered on this aspect  of  the matter  the  requirement  of national  integration  and  the nature of relationship between Government and the High Court Judges. As regards the first, no one can deny that whatever measures are  required  to  be taken in  order  to  achieve  national integration  would  be in ’public interest.  Whether  it  is necessary to transfer Judges from one High Court to  another in  the interests of ’national integration is a moot  point. But  that  is  a policy matter with  which  courts  are  not concerned   directly.    One  may,  however,   venture   the observation that there are numerous other ways of  achieving national  integration more effectively than by  transferring High   Court  Judges  from  one  High  Court   to   another. Considering the great inconvenience, hardship and possibly a slur,  which  a  transfer from one ’High  Court  to  another involves,  the  better  view would be to  leave  the  Judges untouched  and take other measures to achieve that  purpose. If  at  all,  on  mature  and  objective  appraisal  of  the situation  it  is  still felt that there should  be  a  fair sprinkling in the High Court judiciary of persons  belonging to  other  States,  that  object  can  be  more  easily  and effectively  attained  by making appointments  of  outsiders initially.  I would only like to add that the record of this

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case  does  not bear out the claim that any one  of  the  16 ’High  Court Judges was transferred in order to further  the cause of national integration.  Far from it.  Nothing was to be gained by transferring a Bombay Judge to Andhra  Pradesh, who  had  less than nine months left  for  retirement.   And however pressing the requirement of national integration may be,  that  could not have been achieved, on  any  bone  fide assessment  of  the situation, by transferring  to  Calcutta another Bombay Judge who was hovering between life and death and who, ultimately, succumbed to the strain of the transfer as stated by Mr. Seervai. On  the  other  question, the  rejection  of  Mr.  Seervai’s argument  that  a  High Court Judge  cannot  be  transferred without his consent, should not be read as a negation of his argument  that there is no master and  servant  relationship between  the Government and High Court Judges.  In  general, the relationship of master and servant imports the existence of  power in the employer not only to direct what  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 451 clause  (2) of that article to such allowances and  to  such rights  in  respect of leave of absence and pension  as  may from time to time be determined by Parliament and, until  so determined, to such allowances and rights- as are  specified in the Second Schedule to the Constitution.  By the  proviso to article 221(2), neither their allowances nor their rights in  respect of leave of absence or pension can be varied  to their disadvantage after their appointment; and they  cannot be removed from their office save by following the procedure prescribed by article 218 read with articles 124(4) and (5). The  very  oath of office which they take  in  pursuance  of article  219 and in accordance with the form  prescribed  by clause VIII of the Third Schedule, requires them to swear or affirm  that  they will perform the duties of  their  office "without  tear  or favour" and that they  will  "uphold  the Constitution  and the laws".  "Without fear"  is,  primarily without   fear  of  the  executive;  "without  favour"   is, primarily,  without  expecting a favour from  the  executive which  notoriously  commands  a large  patronage.   And  the pledge  is that they shall "uphold the Constitution and  the laws", not the commands of the executive.  Thus, there is  a fundamental  distinction  between  the  master  and  servant relationship as is generally understood and the relationship between  the Government and High Court Judges.   They,.  the Judges of the High Court, are not Government servants in the ordinary signification of that expression. In fact, that is why the Government cannot, on its own, take a  unilateral  decision  in regard to  the  appointment  and transfer  of High Court Judges.  A Judge of the  High  Court can  be appointed by the President only  after  consultation

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with  the Chief Justice of India, the Governor of the  State and  the  Chief  Justice of the High Court; and  he  can  be transferred  from  one  High Court  to  another  only  after consultation   with  the  Chief  Justice  of  India.    This consideration takes us to the next question, as important as the  one of consent which has been just disposed of,  as  to what  is  the  true meaning  and  content  of  ’consultation provided for by article 222(1) of the Constitution. The Constitution speaks of consultation by the President  in three  situations  in so far as  judicial  appointments  are concerned.  Article 124(2) provides that every Judge of  the Supreme Court shall be appointed by the President by warrant under  his hand and seal "after consultations with  such  of the  Judges of the Supreme Court and of the High  Courts  in the  States,  "as the President may deem necessary  for  the purpose".   The 1st proviso to 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".               4 52               Considering the importance      which      the               Constitution  gives  to  appointments  to  the               highest  echelons  of  the  State  and   Union               judiciary,  it  is  hard to  accept  that  the               obligation which the Constitution imposes upon               the President to consult the authorities named               in  the particular articles, casts  no  higher               duty on the President than merely to convey to               them  what be proposes to do and obtain  their               answer.  Before we go deeper into this  point,               it  is  necessary  to  notice  the   important               distinction which the Constitution has made in               the  matter of consultation under article  124               (2) on the one hand, and under the 1St proviso               to   that   article  on  the   other.    While               appointing  a Judge of the Supreme Court,  the               President  may  consult  such  Judges  of  the               Supreme Court and of the High Courts as he may               deem necessary for the purpose.  As contrasted               with  the proviso, this provision  shows  that               there is no obligation on the President, while               appointing  a Judge of the Supreme  Court,  to               consult  any  Judge or Judges of  the  Supreme               Court or of the High Courts.  Since he may  or               may  not consult them, their opinion,  in  the               event  that the President decides  to  consult               them, cannot stand on the same footing as  the               opinion of the authorities whom the  President               is  under an obligation to consult.  But  more               than that, since the President may or may  not               consult them, he has the right to decide  upon               the  nature  of  consultation, if  at  all  he               decides  to consult them.  The 1st proviso  to               article  124(2),  which is in  sharp  contrast               with it, says that in the case of  appointment               of a Judge of the Supreme Court other than the

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             Chief  Justice,  the Chief  Justice  of  India               shall always be consulted.  The proviso leaves               no option to the President and casts on him  a               specific,  obligation  that  he  shall  always               consult  the Chief Justice of India in  making               an  appointment  of  a Judge  of  the  Supreme               Court.    Article  217(1)  casts   a   similar               obligation on the President while appointing a               Judge of the High Court, to consult 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.  Article 222(1) is,               in  substance, worded in similar terms as  the               1st  proviso  to article  124(2)  and  article               217(1).  It casts an absolute obligation  Colt               the President to consult the Chief Justice  of               India  before  transferring a Judge  from  one               High  Court  to another.  The  word  "may"  in               article  222  (1 ) qualifies the  last  clause               which  refers to the transfer of a  Judge  and               riot  the intervening clause which  refers  to               consultation with the Chief Justice of  India.               The President may or may not transfer a  Judge               from  one  High Court to another.  He  is  not               compelled  to  do so.  But if he  proposes  to               transfer  a Judge, he must consult  the  Chief               Justice  of  India  before  transferring   the               Judge.   That is in the nature of a  condition               precedent to the actual transfer of the Judge.               In  other words, the transfer of a High  Court               Judge  to  another High  Court  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 453 to  de in the discharge of his constitutional obligation  to consult  the  Chief Justice of India in the  matter  of  the transfer  of a High Court Judge?  What is, in  other  words, the nature of the process involved in what the  Constitution conceives  as consultation by the President with  the  Chief Justice  of India ? What are its minimal requirements ?   Is ’It  sufficient  for  the President  to  apprise  the  Chief Justice of ,he proposed transfer and to await the  reaction of the Chief Justice to the proposal ? Or, does consultation mean  something more meaningful than what may  in  practical terms be described as ’sounding’ the Chief Justice ? Is  the Chief   Justice  entitled  upon  being  consulted   by   the President,  to  ask for the relevant data to enable  him  to tender  his considered opinion on the subject ?  These  then are the important matters for consideration. Article  222(1) which requires the President to consult  the Chief Justice of India is founded on the principle, that  in a  matter which concerns the judiciary vitally, no  decision ought  to  be taken by the executive without  obtaining  the

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views  of  the Chief Justice of India who, by  training  and experience,  is  in  the  best  position  to  consider   the situation  fairly, competently and objectively.   But  there can  be  no  purposeful consideration of a  matter,  in  the absence  of  facts and circumstances on the basis  of  which alone the nature of the problem involved can be  appreciated and  the right decision taken.  It must,  therefore,  follow that while consulting the Chief Justice, the President  must make  the relevant data available, to him on the,  basis  of which  he  can  offer to the president the  benefit  of  his considered  opinion.  If the facts necessary to arrive at  a proper  conclusion  are  not made available,  to  the  Chief justice,  be  must ask for them because, in casting  on  the President  the obligation to consult the Chief Justice,  the Constitution at the same time must be taken to have; imposed a  duty  on  the Chief Justice to  express  his  opinion  on nothing  less  than a full consideration of  the  matter  on which he is entitled to be consulted.  The fulfilment by the President,  of his constitutional obligation to  place  full facts  before the Chief Justice and the performance  by  the latter,  of the duty to elicit facts which are necessary  to arrive at a proper conclusion are parts of the same  process and   are  complementary  to  each  other.    The   faithful observance of these may well earn a handsome dividend useful to  the administration of justice.  Consultation within  the meaning  of  article  222(1),  therefore,  means  full   and effective, not formal or unproductive, consultation. In  Words  and Phrases (Permanent Edition, 1960,  Volume  9, page  3)  to ’consult’ is defined as ’to  discuss  something together,  to  deliberate’.  Corpus Juris  Secundum  (Volume 16A, Ed. 1956, page 1242) also says that the word  ’consult’ is  frequently  defined  as meaning  ’to  discuss  something together,  or to deliberate’.  Quoting Rollo v. Minister  of Town  and  Country Planning(1) and Fletcher v.  Minister  of Town  and Country Planning(2) 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 (1)  [1948] 1 All E.R. 13 C.A. (2)  [1947] 2 All E.R. 946. 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 commonsense that he who  wants  to ’consult’ a doctor cannot keep facts  up  his sleeve.  He does so at his peril for he can receive no  true advice unless he discloses facts necessary for diagnosis  of his   malady.    Homely  analogies  apart,  which   can   be multiplied,  a  decision  of the Madras  High  Court  in  R. Pushpam  &  Anr.  v. Stale of  Madras(1)  furnishes  a  good parallel. section 43(b), Madras District Municipalities Act, 1920,   provided  that  for  the  purpose  of  election   of Councillors  to  a Municipal Council, the  Local  Government ’after  consulting the Municipal Council’ may determine  the wards  in  which reserved seats shall be set  apart.   While setting aside the reservation made in respect of one of  the

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wards on the ground that the Local Government had failed  to discharge   its  statutory  obligation  of  consulting   the Municipal  Council, Justice K. Subba Rao, who  then  adorned the  Bench  of the Madras High Court, observed :  "The  word ’consult’ implies a conference of two or more persons or  an impact  of two or more minds in respect of a topic in  order to  enable  them  to  evolve  a  correct,  or  at  least,  a satisfactory solution." In, order that the two minds may  be able to confer and produce a mutual impact, it is  essential that each must have for its consideration full and identical facts,  which  can at once constitute both  the  source  and foundation of the final decision. In Chandramouleshwar Prasad v. Patna High Court & Ors. (2) a question  arose in an article 32 petition whether there  was due compliance with article 233(1) of the Constitution which provides.  that  appointments  of persons  to  be,  and  the posting  and  promotion of,, District Judges  in  any  State shall be made by the Governor of the State "in  consultation with the High Court" exercising jurisdiction in relation  to such  State.  While holding that a  Government  notification appointing  the  petitioner as an officiating  District  and Sessions   Judge  was  in  violation  of  article   233,   a Constitution Bench of this Court observed               "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,               (1)   AIR 1953 Mad 392.               (2)   [1970] 2 SCR 666.               45 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).  It is hoped that these words will not fall  on deaf  ears  and since normalcy has now  been  restored,  the differences, if any, between the executive and the judiciary will be resolved by mutual deliberation each, party treating the views of the other with respect and consideration. One of the, learned Judges of the Gujarat High Court, J.  B. Mehta,  J.,  has invalidated the order of  transfer  on  the additional  ground  that  it was made in  violation  of  the

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principles  of natural justice, a consideration which in  my opinion is out of place in the scheme of article 222(1).  It is  true that the, frontiers of natural  justice  principles are  ever-expanding  and judges  are  becoming  increasingly conscious of the range of possibilities of those principles. They  are  anxious  to  impress  the  fundamentals  of  fair procedure  on all those who exercise authority over  others, statutory  or  otherwise.   ’Natural  justice’  has  a  long history,  one of the outstanding instances  being  Bentley’s case  (1) in which the Court of King’s Bench held  in  1723, that the Cambridge University could not deprive a great  but unconventional  scholar of his degrees without  hearing  his explanation for his misconduct.  In Ridge v. Baldwin(2)  the House of Lords voided the dismissal of a chief constable for unfitness,  on the ground that no hearing was given to  him. This Court in State of Orissa v. Dr. (Miss) Binapani  Dei(3) and  A.  K.  Kraipak  v. Union  of  India(4)  stretched  the doctrine to further limits.  But as observed by Hegde J:  in Kraipak(4),  "the aim of the rules of natural justice is  to secure   justice  or  to  put  it  negatively   to   prevent miscarriage  of  justice.......  What  particular  rule   of natural justice should apply to a given case must depend  to a great extent on the facts and circumstances of that  case, the frame-work of the law under which the enquiry is   held and  the  constitution of the Tribunal or  body  of  persons appointed  for  that purpose. Whenever a complaint  is  made before  a  court  that          some  principle  of  natural justice had been contravened the (1)  R. V. university of Cambridge (1723) 1 Str. 557. (2)  [1964] A.C. 40 (3)  AIR 1967 SC 1269. 4)   AIR 1970 SC 150 4 5 6 court has to decide whether the observance of that rule  was necessary  for a just decision of the facts of  that  case." (pages  156-157).   The underlying principle  thus  is  that drastic  powers  are intended to be  exercised  fairly,  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, therefore,  the  Judge  concerned cannot  have reason to complain of arbitrariness; or  unfair play, if the due procedure is followed.  I must add that Mr. Seervai did not argue that the order of transfer is bad  for non-compliance with the principles of natural justice. This concludes the discussion on the, points involved in the appeal.   Unusually, in a matter of this importance,  it  is needless  to work out the final order because at the end  of

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the,  arguments,  on  August 26,  1977,  the  appellant  and respondent 1 arrived at a settlement in the following  terms :               "On the facts and circumstances on record  the               present government do not consider that  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."               In  view  of this settlement,  we  passed  the               following order on that day-               "We  have heard the  learned  Attorney-General               and  Mr. Seervai fully on the  various  points               arising in this appeal.  We will deal with the               arguments  of the learned counsel later  by  a               considered  judgment  or judgments.   For  the               present  we  will only say that since  we  are               informed  that the parties to the appeal  have               arrived  at  a settlement,  the  appeal  shall               stand   disposed   of   in   terms   of   that               settlement."               (1)   Douglas  J.  dissenting in New  York  v.               United States, 342 U. S. 882, 8 84 (1951)               457               To-day   we  have  given  our   judgments   in               pursuance of this order. BHAGWATI, J. This is an unusual case where a Judge of a High Court  has been compelled to seek justice in a court of  law against   an  unwarranted  executive  action.    It   raises questions of great constitutional significance affecting the entire,  High Court Judiciary.  Can a Judge of a High  Court be  transferred  to an-other High Court  by  the  President, which in effect means by the Central Government, under  Art. 222,  clause (1) of the Constitution without his  consent  ? What  is  the  true interpretation  of  this  constitutional clause; does it necessarily imply such consent ? And what is the  meaning  and effect of the  constitutional  requirement that  such  transfer  may be made by  the  President  "after consultation with the Chief Justice of India" ?  What is the scope  and  content of this consultation and  what  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".

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The  order  was  purported to be made by  the  President  in exercise of the powers conferred under Art. 222, clause  (1) of the Constitution.  The first respondent immediately filed Special Civil Application No. 911 of 1976 in the High  Court of  Gujarat  challenging the validity of this order  and  he joined  the Union of India as well as the Chief  Justice  of India  as party respondents to the petition.   The  petition was  admitted and rule issued by Mr. Justice D. A. Desai  on 16th  Julie, 1976.  The first respondent did not  apply  for interim relief as he did not wish to continue to function as a  Judge  of the Gujarat High Court under an  interim  order made  by the Court, but he had filed the petition  pro  boon public  to  assert  and vindicate the  independence  of  the Judiciary, since his was part of a mass transfer of 16  High Court  Judges  and  it was said  that  more  transfers  were imminent.   The  petition was more in the nature  of  public interest  litigation  than private litigation  for  personal gain.   The 1st respondent merely asked for  expedition  and the  hearing of the petition was accordingly fixed  on  26th July,  1976.  The questions raised in the petition being  of great  importance,  the Chief Justice of  the  Gujarat  High Court constituted 458 a  Special Bench consisting of Mr. Justice J. B. Mehta,  Mr. Justice  A. D. Desai and Mr. Justice D. A. Desai,  three  of the  senior  most  judges  of the High  Court  to  hear  the petition.   The hearing commenced on 30th August,  1976  and the argument of counsel for the 1st respondent continued for the  whole  day.  On the next day, before the  argument  was resumed,  a most extraordinary objection was raised  by  Mr. Raman,  the then Additional Solicitor General, on behalf  of the  Union of India, which is the appellant before us.   He, was  also  appearing for the ’second respondent,  the  Chief Justice  of India, but the objection raised by him was  only on behalf of the appellant.  And that objection was that the appellant had heard that some correspondence had taken place between the Chief Justice of India and some of the Judges of the Gujarat High Court, including the members of the Special Bench, in regard to transfers of High Court Judges and  that the  case  should  not, therefore, be heard  by  the  Judges constituting  the  Special Bench.  Since the  objection  was taken  orally  and was not in writing and Mr.  Raman  wanted further  instructions  from  the Government  of  India,  the hearing  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  fairness, withdrawn  by  the  Judges  of  the  High  Court,  who  were

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signatories  to this letter, but the Chief Justice of  India chose  not  to produce it at the adjourned  hearing  of  the petition  on 20th September, 1976.  And yet on the basis  of this  letter, the Government of India, through its  counsel, maintained  its objection that the Judges  constituting  the Special  Bench should not hear the case and filed a  written submission to that effect.  There was considerable  argument before the Special Bench in regard to this objection, but it was overruled and the Special Bench. decided to proceed with the hearing of the petition on merits.  The learned Attorney General, appearing on behalf of the Government of India, did not  press this objection before us. and it  is,  therefore, not  necessary  for me to consider it, but  I  cannot  help. remarking that it was improper on the part of the Government of India to raise such an objection and it betrayed lack  of responsibility  on the part of those who instructed  counsel to   do   so.   In  the  first  place,,  it   passes   one’s comprehension  how the Government of India  could.  possibly raise an objection against three Judges of the Special Bench 45 9 hearing the petition against it, when the Judges  themselves did  not feel embarrassed in hearing it.  It can  safely  be presumed  that  a High Court Judge who is the  holder  of  a highly  responsible office under the Constitution and  whose function  it  is, by the terms of his  oath,  to  administer justice "without fear or favour", would be sensitive  enough to realise that justice must not only be done but must  also appear to be done and if he feels, in the slightest measure, that by reason of any conscious bias or prejudice he may not be  able  to  hold the ’scales of justice even  or  give  an appearance  of doing so, he would not take up the case.   No High Court Judge worthy of his office would knowingly permit any  cloud of bias or prejudice to darken his  understanding or to-influence his decision.  This is the bask postulate on which  rests  the  magnificent  edifice  of  our  system  of administration  of  justice  and  no  one  should  be   more conscious  of  it,  none should have greater  faith  in  the impartiality of our superior judiciary, than the Government, be it Central or State.  The Government of India should have had  the fullest confidence that if the Judges  constituting the Special Bench at all felt that they would 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 would have been liable to the strongest condemnation even if  it had proceeded from a private party and much more  so, must it be regarded when the Government of India is party to it.   I may also observe that when the Government  of  India

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raised an objection against the judges of the Special  Bench hearing the petition on the basis of the letter addressed by them  to  the  Chief Justice of India, it  would  have  been better  if  the  Chief Justice of  India  had  produced  the letter;  particularly when the privilege of  confidentiality was withdrawn by its authors, for that would have helped  to clear  the position of the three judges, instead of  leaving them  in  a situation where there might be some  ’scope  for uninformed  criticism arising out of ignorance of  the  true state of affairs.  The fact, however, remains that the Chief Justice of India did not produce the letter and knowing full well that there was nothing in the letter which would in any way   effect  their  impartiality  or  embarrass  ’them   in discharging  their  judicial  function,  the  three   judges constituting  the Special Bench rejected the  objection  and proceeded to consider the merits of the petition. 460 The  impugned  order  of  transfer  was  challenged  in  the petition principally on four grounds :               (i)   that  it was in violation of  Art.  222,               cl.  (1) of the Constitution as it was  passed               without  the consent of the petitioner;  on  a               true construction of Art. 222, cl. (1)   such               consent  must be necessarily implied  in  that               Article;               (ii)  that  it was invalid  because  effective               consultation  with the Chief Justice of  India               was  a condition precedent to the exercise  of               the power of the President to pass an order of               transfer  under  Art.  222, cl.  (1)  and  the               condition precedent had not been satisfied;               (iii) that  it  was  invalid as  it  had  been               passed in breach of assurance given on  behalf               of  the  Government of India on the  floor  of               Parliament  on the faith of  which  the  1st               respondent  had accepted judgeship,  with  the               result  that  the Government was  bound  by  a               promissory estoppel; and               (iv)  that it was invalid because it militated               against public interest. Though  ground (iii) was urged before the Special Bench  and it  was unanimously negatived, it was not reiterated  before us on behalf of the 1st respondent and hence we need not say anything  about it.  So also ground (iv) was  argued  before the Special Bench and it was urged that the transfer of  the 1st  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

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Judges and though a suggestion was made by the Government of India in its affidavit in reply that the transfers were made with a view to strengthening national integration by cutting at  the  barrier’s  of  regionalism  and  parochialism,  the Government  of  India  did  not  choose  to  disclose,,  the principle  on which these 16 High Court Judges  were  picked out for 461 being transferred.  It is indeed strange that the Government of  India should have selected for transfer, by  and  large, those  High Court Judges who had decided cases  against  the Government during the emergency.  I should have thought that when  the 1st respondent averred in so many terms  that  his transfer  was by way of punishment for deciding against  the Government;  the  Government of India in  its  affidavit  in reply  should not have remained content merely with  denying this  averment,  but should have frankly and  candidly  come forward with the reasons for which the transfer was affected and  if it was for achieving national integration, what  was the basis on which the 1st respondent was picked out for the purpose   of  transfer.   That  was  the  least  which   the Government of India could have done when it was dealing with the holder of a high constitutional office like a High Court Judge.  But unfortunately, the Government of India adopted a ’high and mighty’ attitude and staked its defence solely  on the claim to unfettered power to transfer a High Court Judge under Article 222, clause (1) and that does lend credibility to  the  argument that the transfer was not made  in  public interest,  but  was  by way of punishment  with  a  view  to bringing pressure on High Court Judges to fall in line  with the  views  of  the  Government. it  is  also  difficult  to understand  why the news about the transfers of  High  Court Judges ’should have been blacked out, if the transfers  were really in public interest.  If the transfers were really  in the  interest  of national integration, the news  about  the transfers  should have been given the widest  publicity  and they should not have been withheld from the press.  Moreover the  Government of India admitted before us at the close  of the  arguments that the transfer of the 1st  respondent  was not  justified.   But,  as  pointed out  above,  it  is  not necessary to come to a definite finding whether the transfer of the 1st respondent was not in public interest since  that contention was not pressed before us. So  far as ground (i) is concerned, Mr. Justice A. 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 preferred after  obtaining

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certificate from the High 462 It  will  be apparent from what is stated  above  that  only grounds (i)    and  (ii) survive for consideration  in  this appeal.  I shall presently examine these grounds, but before I  do  so,  a  few preliminary  remarks  in  regard  to  the position of a High Court Judge under the constitution  would not be inapposite.  Chapter V in Part VI of the Constitution deals  with  High Courts in the States.  Art.  214  provides that  there shall be a High Court for each State  and  under Art.  216,  it  is laid down that  every  High  Court  shall consist  of  a Chief Justice and such other  judges  as  the President  may  from  time  to time  deem  it  necessary  to appoint.   The mode of appointment and conditions  of.  the office  of a High Court Judge are provided in Art.  217  and cl.  (1)  of  that Article, so. far as  material,  reads  as follows               "217(1)  Every Judge of a High Court shall  be               appointed  by the President by  warrant  under               his band and seat 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,  and  shall  hold               office, in the case of an additional or acting               Judge, as provided in article 224, and in any               other case, until he attains the age of sixty-               two years Provided that-               (a)   a  Judge may, by writing under his  band               addressed to the President, resign his office;               (b)   a  Judge may be removed from his  office               by  the  President in the manner  provided  in               clause  (4) of article 124 for the removal  of a Judge of th e Supreme Court;               (c)   the  office of a Judge shall be  vacated               by his being appointed by the President to  be               a  Judge of the Supreme Court or by his  being               transferred  by the Preston to any other  High               Court within the territory of India." Article  219  provides that every person appointed to  be  a Judge  of  a  High Court shall, before  he  enters  upon  As office, make and subscribe before the Governor of the State, or some person appointed in that behalf by him, an oath  or affirmation  according to the forms set out for the  purpose in  the Third Schedule.  That form is Form VIII and it  runs inter   alia  as follows : "I A. B.  having  been  appointed Chief  Justice  (or  a  Judge) of  the  High  Court  at  (or of)......  do  swear  in the  name  of  God/solemnly  affirm that...... I will truly and faithfully and to the best of my ability,  knowledge  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 463 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

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provisions read in the context of the constitutional scheme. The  first is that the appointment contemplated under  these provisions  is  appointment  of a person as a  Judge  of  a particular High Court and not as a Judge simpliciter.  There is  no  All-India Cadre of High Court Judges.   Secondly,  a Judge of the High Court is not a Government servant, but he is  the  holder of a constitutional office.  He is  as  much part  of the State as the executive Government.   The  State has  in fact three organs, one exercising  executive  power, another   exercising   legislative  power  and   the   third exercising judicial power.  Each is independent and  supreme within  its  allotted sphere and it is not possible  to  say that  one  is  superior  to  the  other.   The  High  Court, constituted of the Chief Justice and other Judges, exercises the  judicial  power  of  the State  and  is  coordinate  in position  and status with the Governor aided and advised  by the Counsel of Ministers, who exercises the executive  power and  the Legislative Assembly together with the  Legislative Council,  if any, which exercises the legislative  power  of the  State.  Plainly and unquestionably, therefore,  a  High Court Judge is not subordinate either to the executive or to the  legislature.   It would, indeed,  be  a  constitutional heresy  to so regard him.  He has a constitutional  function to  discharge, which includes adjudication of  the  question whether  the executive or the legislature has  over  stepped the  limits of its power under the Constitution.   No  doubt Art.  217, cl. (1) provides for appointment of a  person  to the  office  of a High Court Judge by the  President,  which means  in effect and substance the Central  Government,  but that  is only laying down a mode of appointment and it  does not make the Central Government an employer of a High  Court Judge.   In  fact a High Court Judge has no  employer  :  he occupies  a high constitutional office which  is  coordinate with the executive and the legislature. Now the independence of the judiciary is a fighting faith of our  Constitution.  Fearless justice is a cardinal creed  of our  founding document.  It is indeed a part of our  ancient tradition  which has produced great judges in the past.   In England too, from where we have inherited our present system of administration  of justice in its broad  and  essential features,  judicial independence is prized as a basic  value and so natural and inevitable it has come to be regarded and so,  ingrained it has become in the life and thought of  the people that it is now almost taken for granted and it  would be  regarded  an  act  of insanity  for  any  one  to  think otherwise.   But  this has been accomplished  after  a  long fight  culminating in the Art of Settlement. 1688. Prior  to the enactment of that Act, a Judge in England held 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 464 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

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             Queen, immaculate, unspotted, and unsuspected.               There is no human being whose smile or  frown,               there is no Government, Tory or Liberal, whose               favour or disfavour can start the pulse of  an               English  Judge upon the Bench, or move by  one               hair’s  breadth  the  even  equipoise  of  the               scales of justice." The  framers  of  our  Constitution  were  aware  of   these constitutional   developments  in  England  and  they   were conscious  of our great tradition of  judicial  independence and  impartiality and  they realised  that  the  need  for securing the independence of the judiciary was even  greater under our Constitution than it was in England, because  ours is a federal or quasi-federal Constitution which confers fundamental rights, enacts other constitutional  limitations and  arms  the Supreme Court and the High  Courts  with  the power of judicial review and consequently the Union of India and  the  States would become the largest  single  litigants before  the Supreme Court and the High Courts.  Justice,  as pointed  out  by this Court in Shamsher Singh  v.  State  of Punjab,(1)   can   become  "fearless  and   free   only   if institutional  immunity and autonomy are  guaranteed".   The Constitution-makers,  therefore, enacted several  provisions designed  to,  secure  the  independence  of  the   superior judiciary  by  insulating it from executive  or  legislative control,  I shall briefly refer to these provisions to  show how  great  was the anxiety of  the  constitution-makers  to ensure  the independence of the superior judiciary and  with what meticulous care they made provisions to that end. Every judge of a High Court is entitled to hold office until he  attains  the age of 62 years and unless  he  voluntarily resigns  his  office or is removed from his  office  by  the President  in the manner provided in clause (4)  of  Article 124  by  a  procedure analogous to  impeachment  for  proved misbehavior  or incapacity or he is appointed to be a  judge of  the  Supreme  Court or is transferred  to  another  High Court,  he cannot be removed from office.  His  security  of tenure  upto  the  age, of 62  years  is  guaranteed.   Vide Article  217,  clause (1).  The salary and allowances  of  a High Court Judge are charged on the Consolidated Fund of the State  under  Article  202, clause (3)  (d)  so  that  under Article  203 clause (1) they are not subject to the vote  of the   Legislative  Assembly,  the  object  being  that   the legislature  should  not  be in a  position  to  effect  the independence  of  the  High Court  judiciary  by  exercising pressure  through  refusal  to vote  the  salary  and  other allowances.  Similarly, the pension payable to a High  Court Judge  is  charged on the Consolidated Fund of  India  under Article 112, clause (3) (d) (iii) so that under Article 113, (1)  [1975]1 S.C.R. 814, at 876. 465 clause (1) it is not required to be submitted to the vote of Parliament ,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

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his duties.  Article 215 confers upon the High Court a power to  punish  for contempt of itself and thus  protect  itself against  interference  in the course  of  administration  of justice from whatever source it may come.  Form VIII in  the Third  Schedule which is the form of oath prescribed  for  a Chief Justice or a Judge of a High Court also emphasises the absolute necessity for judicial independence if the oath  is to be observed, because it requires the Judge to swear  that he  will perform the duties of his office "without  fear  or favour,  affection  of ill-will".  The independence  of  the High  Court is also sought to be, reinforced by Article  229 which  provides that appointments of officers  and  servants shall  be made by the Chief Justice or such other  Judge  or officer  as  he  may  appoint, so that  there  is  not  even indirect  interference with judicial administration  by  the executive.   And hovering over all these provisions  like  a brooding  omnipresence is Article 50 which lays down,  as  a Directive  Principle of State Policy, that the  State  shall take  steps to separate the judiciary from the executive  in the public services of the State.  This provision, occurring in a chapter which has been described by Granville Austin as "the conscience of the Constitution" and which embodies  the social   philosophy  of  the  Constitution  and  its   basic underpinnings and values, plainly reveals, without any scope for  doubt or debate, the intent of the  constitution-makers to immunise the judiciary from any form of executive control or interference. But this is not all.  There are also other provisions in the Constitution  which  clearly  disclose the  anxiety  of  the constitution-makers  to  secure  the  independence  of   the judiciary.  Chapter VI in Part VI of the Constitution  deals with subordinate courts and, as pointed out by this Court in the   State  of  West  Bengal  and  Anr.  v.   Nriperdranath Bagchi(1),  Articles 233 to 237 which occur in this  Chapter are  designed to make the High Court the sole  custodian  of control over the Subordinate Judiciary, except in so far  as exclusive  jurisdiction  is conferred upon the  Governor  in regard  to  appointment, posting and promotion  of  District Judges.   The question of interpretation of  these  Articles arose  in Nripendranath Bagchi’s case(1) where the point  at issue  was  as to which authority is  entitled  to  exercise disciplinary  jurisdiction  over  a  member  of  Subordinate Judiciary-the  High  Court or the  State  Government.   This Court  traced  the  history  relating  to  the   Subordinate Judiciary  and observed that "the history which lies  behind the enact- (1) [1966] 1 S.CR. 771. 6-930SCI/77 466 ment of these Articles indicates that control was vested  in the High Court to effectuate a purpose, namely, the securing of the independence of the Subordinate Judiciary and  unless it  included disciplinary 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

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appointment  or promotion to a vacancy in the cadre.  If  it is  the  former, transfer would be within the power  of  the Governor  under  Article  233,  but if  it  is  the  latter, transfer  would cc necessarily be outside the power  of  the Governor  and fall to be made by the High Court as  part  of the  control  vested  in it by  Article  235".   This  Court preferred the narrower meaning, since it was more in  accord with the constitutional policy of securing the  independence of  the  Subordinate Judiciary and held that transfer  of  a District  Judge is "a matter of control of  District  Judges which is vested in the High Court" under Article 235.  It is apparent that under Article 233 to 237 the control over  the Subordinate  Judiciary  in respect of  transfer  and  disci- plinary action is vested in the High Court to the  exclusion of  the State Government for a purpose, and that purpose  is the securing of judicial independence.  That is why  Krishna Iyer, J., speaking on behalf of himself and me, pointed  out in Shamsher Singh v. State of Punjab (supra), "the exclusion of  executive interference with the  Subordinate  Judiciary, i.e.,  grass-roots justice, can prove a teasing illusion  if the  control over them is vested in two masters,  viz.,  the High  Court and the Government, the latter  being  otherwise stronger".   It will thus be seen that even with  regard  to the  Subordinate Judiciary the framers of  the  Constitution were  anxious  to secure that it should  be  insulated  from executive  interference and once appointment of a  Judicial Officer  is made, his subsequent career should be under  the control  of the High Court and he should not be  exposed  to the possibility of any improper executive pressure.  If such was the concern of the constitution-makers in regard to  the independence of the Subordinate Judiciary, their anxiety  to secure the independence of the superior judiciary could  not have  been  any the less and it is this  thought  that  must animate and guide our interpretation of Article 222,  clause (1) which confers on the President power to transfer a Judge from one High Court to another. With  these prefatory observations I may now go straight  to the  interpretation  of Art. 222, clause (1).   Article  222 consists of two clauses which read as follows               "22(1)  The President may, after  consultation               with  the Chief Justice of India,  transfer  a               Judge  from one High Court to any  other  High               Court.               (1)   [1967] 1 S.C.R. 454.               467               (2)   When   a  Judge  has  been  or   is   so               transferred,  he  shall during the  period  he               serves,   after   the  commencement   of   the               Constitution (Fifteenth Amendment) Act,  1963,               as  a  Judge  of  the  other  High  Court,  be               entitled to receive in addition to his  salary               such  compensatory allowance as may be  deter-               mined  by  Parliament  by law  and,  until  so               determined, such compensatory allowance as the               President may by order 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

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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 clause in the light of the well  recognised canons of construction.  To that question I will now turn. Now,  it is undoubtedly true that where the language  of  an enactment  is  plain and clear upon its face and  by  itself susceptible  to  only  one  meaning,  then  ordinarily  that meaning would have to be given by the Court.  In such a case the task of interpretation can hardly be said to arise.  But language at best is an imperfect medium of expression and  a variety  of  significations  may  often lie  in  a  word  of expression.  It has, therefore, been said that the words  of a  statute  must  be  understood  in  the  sense  which  the legislature has in view and their meaning must be found  not so much in a strictly grammatical or etymological  propriety of  language, nor in its popular use, as in the  subject  or the  occasion  on which they are used and the object  to  be attained.   It was said by Mr. Justice Holmes in  felicitous language in Town v. Eisner(1) that "a word is not a crystal, transferant  and  unchanged;  it is the  skin  of  a  living thought and may vary greatly in colour and content according to the circumstances and the time in which it is used".  The words  used in a statute cannot be read in isolation;  their colour  and  content  are derived from  their  context  and, therefore,  every word in a statute must be examined in  its context.   And when I use word ’context’, I mean it  in  its widest   sense  "as  including  not  only   other   enacting provisions  of  the  same  statute  but  its  preamble,  the existing  state of the law, other statutes in  pari  materia and the mischief which-the statute was intended to  remedy". The   context   is  of  the  greatest  importance   in   the interpretation of the words used in a statute.  "It is quite true" pointed out by Judge Learned Hand in Helvering v. (1)  245 U.S. 418. 468 Gregory,(1) "that as the articulating of a statute increase, the  room for interpretation must contract; but the  meaning of  a sentence may be more than that of the separate  words, as  a  melody  is  more than the notes,  and  no  degree  of particularity  can ever obviate recourse to the  setting  in which all appear, and which all collectively create." Again, it  must  be remembered that though the words used  are  the primary,  and  ordinarily  the  most  reliable,  source   of interpreting the meaning of any writing, be it a statute,  a contract, or anything else, it is one of the surest  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 :

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(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 intention could not have been to use them in  their ordinary  signification",  the Court would be  justified  in "putting  on  them some other signification,  which,  though less  proper, is one which the Court thinks the  words  will bear".  Vide River Wear Commissioners v. Adamson(3).  It  is in  the light of these principles of interpretation  that  I must proceed to consider what is the true meaning and effect of cl. (1) of Article 222: whether it permits transfer of  a Judge  from one High Court to another, irrespective  of  his consent. Now,  transfer  of  a Judge may be  consensual,  i.e.,  with consent, or compulsory, i.e., without consent, and the  word ’transfer’  according  to its plain  natural  meaning  would include  both  kinds  of  transfer.   But  the  question  is whether,  having  regard  to  the  manifest  intent  of  the constitution-makers  to  secure  the  independence  of   the superior  Judiciary and the context and the setting  of  the provision in which the word ’transfer’ occurs, should it  be interpreted  in  its  wider  sense  to  include   compulsory transfer  as  well as consensual transfer, or it  should  be given   a  narrower  meaning  limited  only  to   consensual transfer.  There are, in my opinion, two weighty reasons why the more limited meaning should be preferred and  ’transfer’ should be read as confined to consensual transfer. In the first place, it cannot be seriously disputed that the transfer  of  a Judge from one High Court to  another  would ordinarily  inflict personal injuries on him.  He  would  be displaced from his original (1)  69 F (2) (d) 809. (2)  (1584) 3 W. Rep. 16; 76 E.R. 637. (3)  (1876-77) App.  Cs. 743 at 764. 469 home where he might have spent a major part of his life  and he  might have to maintain two establishments involving  him in  considerable  extra  expenditure.   This  was  in   fact admitted  by Shri Asoke Sen, the then Minister for  Law,  in the  course of his speech on the floor of the Lok  Sabha  on 30th April, 1963 when he said : "-it is very difficult for a Judge  who is rooted to one place to go on transfer so  that in most cases he may have to maintain his family in both the places  and his expenses will increase".  The  education  of the  children of the Judge might also be affected,  if  not. disrupted  for  a time, particularly since  the  medium  of, Instruction  in schools and colleges in most States  is  the regional  language.  The medical facilities also  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

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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  Courts  after  his retirement.   It  would  also  be  highly  inconvenient  and expensive to the Judge to go to his home State on auspicious occasions  or  in  case of death or illness  of  some  close relative, particularly where he is transferred to a  distant High  Court,  as  happened in the case of a few  of  the  16 judges picked out for transfer.  The compensatory  allowance payable to the Judge in such a case would reimburse him only in respect of the expenditure on two Establishments, but the other injuries would, by their very nature, be incapable  of compensation  and would cause hardship and suffering to  the Judge  and  the members of the family.  It would,  thus,  be seen that the power to transfer a Judge from one High  Court to  another is not an innocuous power but it is a power  the exercise  of which would almost inevitably inflict  injuries on the Judge who is subjected to such transfer.  That is why Krishna  Iyer, J., speaking on behalf of himself and  me  in Shamsher Singh’s case (supra), pointed out that "sometimes a transfer can be more harmful than punishment" and this Court preferred to give a narrow meaning to the word ’posting’  in Article  233 so as to take the power of transfer out of  the reach  of the executive and vest it exclusively in the  High Court. Now,  it  cannot be disputed that, on the terms  of  Article 222,  clause (1), the power of transfer is conferred on  the President,   which  means  in  effect  and   substance   the executive, since the President cannot act save in accordance with the aid and advice of the council of ministers.  If, on a proper construction of cl. (1) of Article 222, the power 470 of transfer could be exercised by the executive and the High Court  Judge  could be transferred without his  consent,  it would  be  a highly dangerous power, because  the  executive would then have an unbridled charter to inflict injury on  a High Court Judge by transferring him from the High Court  to which  he originally agreed to be appointed to another  High Court,  if he decides cases against the Government or  deli- vers  judgments which do not meet with the approval  of  the executive.  That would gravely undermine the independence of the  judiciary,  for  the High Court  Judge  would  then  be working  constantly under a threat that if he does not  fall in  line  with  the  views  of  the  executive  or  delivers judgments is not to its liking, he would be transferred, may be  to  a far-off 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

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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  Government  is  a  party.  It is  no  doubt  true  that previous  consultation with the Chief Justice of India is  a condition precedent to the exercise of the power of transfer by  the executive add, as I shall presently point out,  this consultation  is  not a mere idle formality, but has  to  be real and substantial, but even so I do not think it  affords sufficient  protection  to  the  High  Court  Judge  against unjustified  transfer by the executive.  It is  settled  law that though consultation with the Chief Justice of India  is obligatory,  and  as pointed out by this  Court  in  another connection, the opinion of the Chief Justice of India should be  given  the  greatest weight, it would  not  be  strictly binding  on the President, that is, the executive,  and  for all practical purposes the final decision would rest in  the hands of the executive, so that in the ultimate analysis the High  Court Judge would, in the matter of  transfer,  remain directly  under  the control of the  executive’.   Moreover, there is no guarantee that the Chief Justice of India,  with whom consultation is made a constitutional imperative, would always  be able to safeguard the interest of the High  Court Judge.  In fact, the mass transfers of 16 High Court Judges, including  the 1st respondent, which took place in  May-June 1976 clearly demonstrate the inadequacy of the safeguard  of previous  consultation with the Chief Justice of India.   It is  obvious, and recent history has proved it beyond  doubt, that  it  is  dangerous to lodge  unfettered  power  in  the executive to inflict injury on a High Court Judge 471 and  the check of consultation with one  single  individual, howsoever highly he may be placed in the judicial hierarchy, is  illusory  and  unreal.  It is  essential  for  free  and independent judiciary that power exercisable over it  should not  be  left wholly in the hands of the  executive  and  it should not be enough merely to consult the Chief Justice  of India to get a charter to exercise the power in such  manner as  the  executive  thinks fit.  It would  not  be  safe  to entrust  to  the  executive or  to  one  single  individual, howsoever  high and lofty, the power to inflict injury on  a High   Court  Judge.   Power,  in  order  to  obviate,   the possibility  of its abuse or misuse, should be  broad  based and divided and it should be hedged in by proper safeguards. But  here, on the interpretation canvassed on behalf of  the Government, the executive would be free 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

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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 have to submit to the transfer made by the  executive, as  did  all the 16 judges affected by the  mass  transfers, barring  the 1st respondent, and that would  most  assuredly have the tendency to undermine the independence of the  High Court Judiciary. Now, when the constitution-makers prized the independence of the  judiciary  as a cardinal virtue and accepted it  as  an article of faith necessary for infusing life and meaning  in the  rule  of law and with that end in view,  made  detailed provisions  in  the Constitution, with  the  greatest  care, insulating  the  High  Court Judiciary  from  executive  in- fluence.  or interference in any form.  It is  inconceivable that they should have left a loophole and conceded power  to the  executive  to inflict injury on a High Court  Judge  by transferring him without his consent, so as to wipe out  the effect  of the other provisions and denude them  of  meaning and content.  Let us recall the, passionate eloquence of the constitution-makers  in support of the independence  of  the judiciary  while  debating  the  provisions  in  the   Draft Constitution relating to the superior Judiciary.  Was it not said  in  the   course  of the  debate  in  the  Constituent Assembly  in words aglow with conviction and passion  :  "If the beacon of the judiciary is to remain bright, courts mast be  above  reproach, free from coercion and  from  political influence  ?"  And,  did Jawaharlal Nehru  not  say  in  his unimitable  way  that it was most important  that  the  High Court Judges should be men of the highest integrity, "people who can stand against the 472 executive  government and whoever come in their  Way".   Did not  every  speaker vie with the other to  assert  that  the judiciary must be free from executive influence or  pressure and judicial independence was, of the greatest importance  ? Such   was   the  great  anxiety  and  solicitude   of   the constitution-makers  for the independence of  the  judiciary and   it  is  difficult  to  believe  that  with  all   this overweening   concern   for   judicial   independence,   the constitution-markers   could  have  intended  to   enact   a provision  which has the tendency and effect to imperil  the independence  of the judiciary, particularly when they  took care  to introduce in the Constitution elaborate  provisions concreteness  the concept of independence of the  judiciary. It  also  seems  highly  anomalous  that  the  transfer   of Subordinate  Judges should be wholly within the, control  of the  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

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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 Judiciary by insulating it from all  forms at  executive control or interference is.  to  be achieved,  the word ’transfer’ must be read in  the  limited sense  of consensual transfer.  It must be  remembered  that when  the  Court interprets a constitutional  provision,  it breathes  life  into the inert words used  in  the  founding document.  The problem before the Constitution Court is  not a mere verbal problem.  "Literalness", observed Frankfurter, J.,  "may  strangle  meaning"  and he  went  on  to  add  in Massachusetts  S. & Insurance Co. v. U.S.(1) that "there  is no  surer  way  to  misread  a  document  than  to  read  it literally,"  The Court cannot interpret a provision  of  the Constitution  by making "a fortress out of the  dictionary". The  significance of a constitutional problem is vital,  not formal  :  it has to be gathered not simply  by  taking  the words  and a dictionary, but by considering the purpose  and intendment  of the framers as gathered from the context  and the  setting  in which the words occur.  The  difficulty  of gathering  the true intent of the law giver from  the  words used  in  the  statute was expressed by  Holmes,  J.,  in  a striking and epigrammatize fashion when he said : "Ideas are not  often  hard  but the words are  the  devil",  and  this difficulty is all the greater when the words to be construed occur in a constitutional provision, for, as pointed out  by Cardozo, J., the process of constitutional interpretation is in  the  ultimate analysis one of reading  values  into  its clauses.  I would, in the circumstances, (1)  (1956) 352 U.S. 128. 473 unhesitatingly  read  the word ’transfer’ in clause  (1)  of Article  222 as confined to consensual transfer in order  to give effect to the paramount intention of the  constitution- makers  to  safeguard  the  independence  of  the   superior Judiciary by placing it out of the reach of the power of the executive.   I  am fortified in this approach  by  the  high authority of the decision of this Court in Ranga  Mahammad’s case  (supra) which was an analogous case, where  a  limited meaning  was given to the word ’posting’ in Article, 233  so as to be confined only to initial posting on appointment  or promotion, with a view to a effectuating the  constitutional policy  of  securing  the independence  of  the  Suborainate Judiciary. This  view,  which  I am taking, is also  supported  by  the scheme   and   language  of  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

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of India".  Now under the Government of India Act, 1935 also there was a similar provision in proviso (c) to  sub-section (2)  of section 200, but this provision employed a  slightly different phraseology and provided that the office of a High Court Judge shall be- vacated "by his being appointed to  be a  Judge  of the Federal Court or of  another  High  Court." Neither  in  proviso (c) nor in any other provision  of  the Government  of India Act, 1935 was the word ’transfer’  used and  there  was  also  no specific  provision  in  that  Act conferring power to transfer a High Court Judge.  The  power to  transfer a High Court Judge was expressly conferred  for the  first time under the Constitution and it  was  provided that  the office of a High Court Judge shall be  vacated  by his  being transferred to another High Court.  The  question is   whether  the  use  of  the  word  ’transfer’   in   the Constitution  makes  any difference to  the  position  which obtained under the Government of India Act, 1935.  There  is one  difference  which is obvious and it  is  that,  whereas under  the Government of India Act, 1935, it was  only  when appointment to another High Court was made by the  Governor- General  by  following the procedure prescribed  for  making such appointment, that the Judge vacated his office us judge of   the  original  High  Court,  the  position  under   the Constitution is that appointment of a Judge to another  High Court can be made by transfer and such appointment would not have  to  go  through the procedure  prescribed  for  a  new appointment.  Transfer of a Judge under the Constitution  is a mode of app ointment to the High Court to which the  Judge is transferred.  This ’becomes patently clear if it is borne 474 in  mind  that when a Judge is transferred to  another  High Court,  he  has  to  make and subscribe,  a  fresh  oath  or affirmation before the Governor of the State to which he  is transferred, before he can enter upon the office of Judge of that  High Court and that oath or affirmation has to  be  in Form  VIII  in  the  Third  Schedule.   The  Judge  who   is transferred  is,  therefore, by the  modality  of  transfer, appointed  as  a  Judge of the High Court  to  which  he  is transferred  and he becomes a Judge of that High Court  only when  he makes or subscribes an oath or  affirmation  before the  Governor  of  that State.  It is  only  then  that  the transfer  of  the Judge from one High Court  to  another  is complete :and he ceases to be a Judge of the High Court from where he is transferred.  It could not have been intended by the constitution-makers that a Judge of a High Court  should vacate his office and cease to be a Judge of that High Court as 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

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one  post  to another and not in the sense, in which  it  is ordinarily used where there is transfer from one station  to another  within the same cadre.  Even appointment of a  High Court Judge to the Supreme Court is regarded as transfer  to the Supreme Court.  I have, therefore, no doubt that when a Judge  is transferred from one High Court to another, be  is appointed  to the High Court to which he is transferred  and it is only when he assumes charge of the office of Judge  of that  High  Court  by  making and  subscribing  an  oath  or affirmation before the Governor of the State, that he ceases to  be  a  Judge  of  the  High  Court  from  where  he   is transferred.  Now, it is difficult to believe that the  con- stitution-makers  could have ever intended that  appointment of a Judge to a High Court or to the Supreme Court could  be made without his consent.  How would such appointment become effective  unless  the  Judge who  is  appointed  makes  and subscribes  an oath or affirmation before the  Governor,  in case  of  appointment  to  the High  Court  and  before  the President, in case of appointment to the Supreme Court.  And that  would plainly be a matter within the volition  of  the Judge.   It is, therefore, obvious that the volition of  the Judge  who  is  transferred  is  essential  for  making  the transfer  effective and there can be no transfer of a  Judge of  a High Court without his consent.  This is the  position which emerges clearly from a consideration of the conspectus of the relevant constitutional provisions. 475 It was, however, contended on behalf of the Government  that this   narrow interpretation of the provision in clause  (1) of  Article 222 permitting transfer only with consent  would stultify  the power of transfer conferred on  the  President and rob it of its practical content, because by an large  no High  Court  Judge  would give his consent  to  transfer  to another  High Court.  But this apprehension does not  appear to  be well founded because the history of almost a  quarter of century after the commencement of the Constitution  shows that  during this period no less than 25 High  Court  Judges were transferred with their consent in exercise of the power conferred under this constitutional provision and it did not remain  dormant or sterile.  The, annexure appended  to  the affidavit in reply filed by R. Vasudevan, :Deputy  Secretary to  the  Government of India, Ministry of Law,  Justice  and Company  Affairs  gives  the list of  these  25  High  Court Judges, some of whom were transferred as Chief Justices  and others  as  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 to

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act as a check upon it.  I think it wag Mr. Justice  Jackson who  said  that  "judges  are more  often  bribed  by  their ambition  and loyalty than by money".  The Chief Justice  of India was, therefore, entrusted with the duty to ensure that no favour was shown by the executive in transferring a Judge from one High Court to another so as to place him in a  more advantageous position, unless interest of the administration of  justice demanded it.  Then, it was urged that if such  a narrow view was taken as regards the meaning and content of the  word  ’transfer’ in clause (1) of Art.  222,  it  would become impossible to transfer a Judge whose continuance in a particular   High  Court  to  which  he  is   appointed   is undesirable  on  account  of  doubtful  integrity,  improper conduct  or undue involvement with lawyers and  members  of the  public.  Would that not be prejudicial to the  interest of administration of justice and hence detrimental to public interest  ?  Does public interest not require  that  such  a judge  should be transferred to another High Court so  that be may be put out of harm’s way?  Then why should the  power to  transfer  such a Judge be denied  altogether,  for  that would  in  effect  be the position, if  transfer  were  not possible without the consent of the Judge.  Now, it is  true that there might be some cases where the dictates of  public interest might require transfer of a Judge from one 4 76 High Court to another, but such cases, by their very nature, would  be  few and far between and I do not  think  that  it would be right, on account of a few such cases, to  concede power  in  the  executive to transfer  a  High  Court  Judge without his consent which would impinge on the  independence of  tEe judiciary.  Here there is a competition between  two categories  of public interest.  One is the public  interest in  seeing  that a High Court Judge does  not  continue  to remain  at a, place where he is polluting the pure  fountain of justice and the other is the public interest in  securing the independence of the High Court judiciary from  executive control or interference.  The latter public interest clearly outweighs the former and if the court has to choose  between the  two,  the  latter must obviously be  preferred  to  the former.   The  transfer of an undesirable Judge  may  secure public  interest  and’ his continued presence in  the  court from where he is to be transferred may be an evil, but it is necessary  to put up with that evil in order to  secure  the 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  of’  the  court  and persuade  the court to accept a construction which  promotes that public interest rather than impairs it.

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It  is no doubt true that by this interpretation, the  power of  the  executive to transfer a High Court Judge  would  be considerably  circumscribed,  but the power  being  of  such nature and character that its improper exercise can  gravely imperil  the independence of the judiciary which is one,  of the  fore-most  concern of the Constitution, it  has  to  be limited  in order to prevent its possible abuse  or  misuse. It is often said by courts that the entrustment of power  in the  hands  of  high  functionaries of  State  is  itself  a grantee against its abuse, but we have seen in our own times that  this power of transfer has been abused by the  highest in the land and the so called safeguard of consultation with the  Chief  Justice of India has proved to be of  no  avail. And,  as pointed out by the Judicial Committee of the  Privy Council’ in Don John Francis Douglas Livanage & Ors. v.  The Queen  (1)  : "What is done once, if it be allomed,  may  be done  again".   It  is a  terrifying  thought,  a  frightful possibility,  which cannot be allowed to recur  if  judicial construction can help avert it.  Lord Action said with- (1) [1959] 1 A.C. 259. 4 77 a  profound sense of history : "Power corrupts and  absolute power corrupts absolutely".  The history of the  development of supremacy of the rule of law has been a constant struggle between  assertion of ,power on the one hand and efforts  to curb and control it on the other.  The interpretation  which has  found  favour with me places a limitation on  the  vast power  reposed  in  the executive  and  this  limitation  is necessary-indeed  it  is fully jusfitied by  all  recognised canons of construction-in order that the superior  Judiciary may  be  free  from executive  influence  or  pressure.   Of course,  this  view would render it  ,almost  impossible  to transfer  an  undesirable  Judge  from  one  High  Court  to another,  but for that, the remedy is not to read the  power conferred  on the executive as a power  exercisable  without the  consent  of  the Judge but  to  create  an  independent authority which is not controlled by the executive and where power  is exercised by a plurality of hands and to vest  the power  of transfer in such independent authority so that  it may objectively and impartially examine each individual case of  proposed  transfer  on merits  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, 1977  disposing of  the appeal in terms of the settlement.  Since,  however, there was  full debate before us and  elaborate  arguments

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were  advanced on the two points arising for  consideration, we  decided to give a considered judgment dealing with  both the  points.  This judgment sets out my conclusions  on  the two   points  and  gives  my  reasons  for  reaching   those conclusions. KRISHNA  IYER,  J.-A  Judge assailed  his  transfer  by  the President  of  India from one High Court to another  on  the ground  of violation of mandatory norme, and sought and  got ’nor-transferability’ justice from his peers.  The Union  of India,  aggrieved by the statement of law and assessment  of fact,  has  attacked  this  verdict.   Such  is  the   case, capsulated in a couple of sentences but canvassed by counsel at  erudite length, the subject of justice to  Judges  being virgin  and the theme of ’lawful illegality’ being  amenable to imaginative submissions. 478 Two  disturbingly vital, potentially portentous problems  of Sumter  Power,  are on the brief  agenda  of  constitutional adjudication  before  us  in  this  appeal  by  certificate. Despite the diverse points and extreme positions explored at length  by  the  High  Court, the case,  in,  its  crux  and conscience,  lends  itself  to  decisive  determination   by seeking  answers  to  a few  interrogations.   If  the  twin questions,  which  we will presently formulate,  are  to  be satisfactorily  settled,  the role of judge  power  and  the immunity  of  the  judiciary  must  be  studied  with  aware allegiance to the Scheme and Sweep of the Constitution  with insightful homage to the soul of the Paramount Parchment and with   sociological  appreciation  that  our  economic   and political order, of which the legal order is but a juridical reflection,  is  sharply  pluralist.   The  apparatuses   of activist  Justice, working under such societal  strains  and stresses  and  charged with engineering  progressive  change through  the  law, may have to enjoy more  than  traditional functional freedom.  For, in a dynamic democracy, with goals of  transformation  set up by the Constitution,  the  Judge, committee to uphold the founding faiths and fighting  creeds of  the  nation-  so  set forth,  has  to  act  heedless  of executive   hubris,  socioeconomic  pressures  and   diehard obscurantism.   This  occupational  heroism,  professionally essential, demands the inviolable independence woven  around the judiciary by our Constitution.  Perfection baffles  even 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 behavioral   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 presence felt. We may mention here that as the arguments were drawing to a,

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close, there was a rapproachement move, the political  party now   in  office  at  the  Union  level  reportedly   having repeatedly  stated at the ’hustings’-to borrow the words  of Shri   Seervai,   counsel  for   the   1st   respondent-that ’transfers’   of   High  Court  judges   effected   by   its predecessor-in-power  would be cancelled.  Pursuant to  this policy  a  statement  was  made,  by  the  learned  Attorney General,  concurred  in  by  Shri  Seervai,  that  the   1st respondent   was  proposed  to  be  re-transferred  by   the President  of India and that consequently the relief  prayed for  was  in substance being conceded.  Every  dispute  that ripens   into  a  fruitful,  consensual,  resolution,   ends happily,  and’ so, we should have made short shrift  of  the litigation on a welcome 4 79 compromise.   But we heard counsel on the points covered  by the judgment under appeal and so deal with them in  fairness to the forensic submissions, the Bench of the High Court and the community at large.  Where, under our adversary  system, a  critical constitutional question arises,  whose  decision may,  perhaps, mark the water-shed between  flexible  judges and  fearless  justice,  the  quality  of  a  litigation  is transformed,   the   particular  parties  recede   and   the collective  community  (we,  the People  of  India)  figures invisibly  as the beneficiary of the law to be laid down  by the final Court.  And so, the compounding of the lis  cannot lull  us into treating the subject of ’transfer’  of  judges under  Article 222 a non-issue.  This Court has  no  crystal ball to foretell, nor radar to detect the possible executive interference  with the independence of the judiciary by  the current or later council of ministers.  We affirm the utmost reverence  for  the  human dignitaries in  high  office  but remind ourselves of Lord Action’ caveat about power and  its tendencies when it is released from the checks and  balances the  founding  fathers have forged.  Nor can  hortations  be cognised by the Court because of the common distance between rhetoric   and  reality,  romantics  and   pragmatics.    An independent judiciary as pivotal to democracy is a  euphoric proposition and yet, may not, by itself ward off  infliction of  subtle indignities and little neglects by the  Executive on  judicial  personnel  who  often  smart  under  invidious distinctions.   The supremacy of the judiciary as  a  senior 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 expatiated upon a little  later,

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but suffice it to say, that most Constitutions of the world, Socialist and Capitalist. have made it axiomatic that Judges shall  be  free  and  fair  and  fearless  in   professional functions.   Those  who denied it once or doubt it  now  may live to do it reverence from experience. What  falls  for consideration in the present  appeal  is  a closer look at the provision for judicial transfers and  the content of "consultation’ as set out in the text and context of our Constitution.  The 480 construction  of  Article 222 has to be  attempted  in  this larger setting since it has a grave import for our country’s progress  in  many respects.  Not to  decide,  these  issues squarely  raised   in  this appeal  merely  because  of  the appellant   and   the  1st   respondent   having   exchanged assurances,  if any, is to leave the jural area in  twilight with  lamp  in hand.  Indeed, the issues  of  semantics  and modalities raised in respect of Article 222 and the fairplay implied  in  its mechanics,  where  orders  constitutionally draped but challenged as expression of executive  obliquity, survive even after the exit of this appeal.  We,  therefore, proceed to formulate the points pressed and discuss the pros and cons. Before  that,  the  facts brevi manu.   The  1st  respondent (petitioner before the High Court) was appointed a Judge  of the  High Court of Gujarat as early as 1969.   According  to the  Judge,  for  suspiciously inscrutable  reasons  he  was transferred  by  the President of India in exercise  of  his power  under  Article  222 in consultation  with  the  Chief Justice of India as recited in the order itself.  The  Judge felt injured and his misgivings were accentuated by the fact that an unusual number of unwilling Judges from various High Courts  were subjected to cross-country transfers,  verdicts adverse  to the Government on ’Emergency I issues being  the apprehended  ground  for  such  traumatic  hostility.    The petitioner-Judge  challenged the vires of  the  Presidential Order  and a Full Bench of the High Court held the  transfer void.   The  Union ’of India has  appealed.   Unfolding  the circumstances  and  exposing  the  essentials;  the  learned Attorney General, appearing for the appellant,  side-stepped the fringe issues and zeroed in on the core questions. Before  formulating  precisely the points on  which  counsel joined  issue,  we may state that Shri Seervai gave  up  the plea  of promissory estoppel which had  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 aban- doned  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  exercise  of

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’transfer  power’ over judges under Article 222.   What  are the modalities, parameters, normae and mechanics of  Article 222 so that the purpose of the provision may be fairly,  not oppressively,  executed by the President,  after  consulting the Chief Justice? 481 Before we enter on a discussion of these crucial  questions, we  may  record the fact that the learned  Attorney  General agreed  that  I consultation’,. as contemplated  in  Article 222,   was  a  high  constitutional  requirement   demanding substantial  compliance  and  not dismissible  as  an  empty formality.   It  was also conceded by the  Attorney  General that transfer. of judges should be an exception and resorted to only in public interest.  Nor was there any dispute about the  competence of the Court under Article 226  to  exercise its  power of judicial review of the Presidential action  if there  was  present  any reason within  the  range  of  non- consultation,  illusory  consultation, ulterior  purpose  or non-application  of  the  mind and the  like  which  may  be condensed  into  (a) breach of the requirements  of  Article 222; or (b) malafide use, of the power thereunder. We  are  mindful  that, in the present case,  the  power  of judicial  review  over  administrative  action  has  to   be exercised  with circumspection and on substantial  material- since  the authorities are the President (i.e., the  Central Cabinet)  and the Chief Justice and the  adversely  affected dramatis  personae are judges of the highest courts  in  the States.  Even so, the play must be’, according to the script and   if  there  is  serious  deviance,  this  Court,   with responsibility to pronounce upon the law of the land,  shall not  shrink  from it a wee bit, If the  examination  of  the validity  of the administrative action exposes breach  of  a fundamental  provision, albeit by the highest, or mala  fide exercise,  however nobly motivated, in either case, the  act becomes  non  est.   Public power is a  lofty  trust  to  be lawfully  operated  and,  if  private  impulses  or   public aberrations  play upon the exercise, the court  shall  quash the  lawless  fiat.  ’A government of laws and not  of  men’ being  our  basic constitutional  theory,  absolutism,  even benignant,  is anathema and administrative action has to  be legitimated by legality.  ’Be you ever so high, the law  (of the   Constitution)  is  above  you’.   When   this   Court, discharging its responsibility under Article 141, places  an authoritative 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 considerations relating to transfer of judges, as set out in

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the  rejoinder affidavit and as articulated by Shri  Seervai in his puissant submissions 7-930SCI/77 482 of impassioned conviction) induce this     observation.   We do  not elaborate save to say this.  On policy and  strategy the President is the judge.   On power and limitations,  the judge presides. Even   so,  the  creed  of  judicial  independence  is   our constitutional ’religion’ and, if the Executive use  Article 222 to imperil this basic tenet, the Court must ’do or die’. For, when curial justice or judicial freedom is  jeopardised by  unconstitutional  action, what survives?  So  a  balance must  be  struck.   Subject to the  major  premise  or  non- negotiable   promise  of  non-interference   with   judicial personnel by methods traumatic or temptational, the rule  is clear.   The Court could not, even if it would, project  its pet   aversions   to   reject   progressive   policies    of Administration even relating to the judiciary; an the  Court would  not, even if it could, hesitate to hang any overt  or covert  juggling with_ the justice system by  any  hubristic Executive.   And when criteria for transfers of  judges  are put forward by the President which may upset past  practices we  must, as democrats, remember Learned Hand who once  said that  the spirit of liberty is ’the spirit which is not  too sure  that  it  is right’.  Thai great judge  was  ’fond  of recalling Cromwell’s statement : ’I beseech ye in the bowels of Christ, think that ye may be mistaken’.  He told a Senate Committee,  ’I  should like to have that  written  over  the portals of every church, every school and every court-house, and  may  I  say of every legislative  body  in  the  United States.  I should like to have every court begin ’I  beseech ye in the bowels of Christ, think that we may be  mistaken’. (Yale Law Journal, Vol. 71; 1961 November part).  Now to the legal challenges canvassed, freed as we are from the need to make factual findings, thanks to the  concessual decretal position.  The first problem formulated by us above revolves   round  our  constitutional  philosophy  and   the construction of the language of Article 222.  ’Philosophy is a battle against betwitchment of our intelligence by  mean’s of  language’  said L. Wittgenstein, in  his  "Philosophical Investigations’.   Mindful of the high sensitivity  area  of judicial independence versus executive 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, 483 independence-imperative vis-a-vis the courts is  effectuated by  the  consultative component in  any  decision  seriously

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affecting  the,  appointment,  conditions  of  service   and kindred matters bearing on the judiciary at various  levels. The  pervasive  importance  of our ruling  on  the  question before  us is thus clear.  Statutory interpretation of  one, clause  may,  in a sense, affect the fascist  of  ’judicial’ clauses  in the various parts of the Constitution.   We  are free  to  concede,  however, that  the  extent,  nature  and process  of consultation may vary to a degree, depending  on the responsible levels, high functionaries, other protective provisions and like factors.  Whether it extends to  consent of the judge concerned is another matter we have to  decide, as  Sri Seervai has been at great pains to ’proselytise’  us to his viewpoint, if we may appreciatively put it that way. Proceeding  to decide a constitutional clause in an  organic code, our juristic technique has to be perceptive  spacious, creative,   not  narrowly   grammatical,   lexicographically pedantic  or  traditionally  blinkered,  informed  by   Lord Denning’s picturesque words               "Law   does   not  stand  still.    It   moves               continually.   Once this is  recognised,  then               the  task  of  the Judge is put  on  a  higher               plane.  He must consciously seek to mould  the               law so as to serve the needs of the time.   He               must  not be a mere mechanic, a  mere  working               mason, laying brick on brick, without  thought               to   the  overall  design.   He  must  be   an               architect--thinking  of  the  structure  as  a               whole-buildihg  for  society a system  of  law               which  is strong, durable and just.  It is  on               his  work  that civilised society  itself  de-               pends."               (Denning, M. R. Foreward to the Supreme  Court               of  India  (A  socio-legal  critique  of   its               juristic techniques)-by Rajeev Dhavan. Shri  Seervai  drew our attention to  the  constellation  of provisions which served as ’hands off judges’ clauses.  This armour  has  counterparts in the Government  of  India  Act, 1935.   For  instance, to borrow from the  1st  respondent’s neat statement of the case, "(a)  Judges of the High Court hold their tenure not at  the pleasure of the President but till they attain the age of 62 years: Article 217 (1):  [Sec. 220(2), G.I. Act, 35]. (b)  Their  salaries and allowances are charged on the  Con- solidated Fund of the State : Article 203(3) (d) [Sec. 78(3) (d) G.I. Act, 351 so that under Article 203(1) they are  not subject to a vote of the Legislative Assembly: [See. 79 (1), G.I.Act, 35] (c)  The  pensions of High 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 484 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.

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(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 interference in  the  course  of administration of justice from whatever quarter it may come. (g)  Under  the general law of Civil liability (Tort)  words spoken or written in the discharge of his judicial duties by a  judge of the High Court are absolutely privileged and  no action  for  defamation can lie in respect  of  such  words. This  absolute  immunity is conferred on the judges  on  the ground  of  public  policy, namely, that  they  can  thereby discharge their duty fearlessly. (h)  The  form of oath prescribed in the 3rd Schedule for  a Chief  Justice or a Judge of the High Court  emphasises  the absolute necessity for judicial independence if the oath  is to  be  adhered to, because it requires the judge  to  swear that he will perform the duties of his office "without  fear or  favour,  affection or illwill."  (  Emphasis  supplied). These words have been added to the form of the judge’s  oath prescribed by the, G.I. Act 35, Schedule IV, 2. (i)  The  independence  of the High Court is  emphasised  by Article 229 which provides that appointments of officers and servants  shall be made by the Chief Justice or  such  other judge or officer as he may appoint. (j)  Article  50,  which is a  directive  of  State  Policy, directs the    State to take steps to separate the judiciary from the executive in the     public services of the  State, thus emphasising the need of securing the    judiciary  from interference by the executive. These provisions do not stand alone.  Chapter V of Part  VII of  the Constiiution deals with High Courts in  the  States. Chapter  VI deals with subordinate Courts and  Articles  233 and  235, as judicially interpreted provide that in  respect of   promotion,  transfer  and  disciplinary   action,   the subordinate judiciary are under the full control of the High Court and not of the executive government in order to secure judicial  independence.  Originally, the  Constitution  used the  word  "posting" in Article 235. in  order  to  preserve judicial independence the word "posting" was interpreted  to mean an original appointment and not to include a  transfer: Ranga  Mahommad’s  case  (1967)  1  S.  C.  R.  454.    This interpretation was accepted by Parlia- 48 5 ment when it inserted Article 233A which was inserted by the Constitution  20th Amendment Act, 1960,  validating  certain appointments   and  recognizing  the   distinction   between "posting"  and "transfer" in sub-clause (a) (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

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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 and               content are derived from their context.  So it               is that I conceive it to be my right and  duty               to  examine  every word of a  statute  in  its               context,  and  I use ’context’ in  its  widest               sense,  which  I  have  already  indicated  as               including  not only other enacting  provisions               of  the  same statute, but its  preamble,  the               existing  state of the law other  statutes  in               pari material and the mischief which I can, by               those and other legitimate means, discern  the               statute was intended to ’remedy.               Since  a large and ever-increasing  amount  of               the  time of the courts has, during  the  last               three   hundred  years,  been  spent  in   the               interpretation and exposition of statutes,  it               is natural enough that in a matter so  complex               the  guiding  principles should be  stated  in               different  language  and  with  such   varying               emphasis  on different aspects of the  problem               that  support of high authority may  be  found               for  general  and  apparently   irreconcilable               propositions.  I shall endeavor not to add  to               their  number,  though  I  must  admit  to   a               consciousness of inadequacy if I am invited to               interpret  any part of any statute  without  a               knowledge of its context in the fullest  sense               of that word." (Emphasis supplied)               Lord  Normand expressed the idea thus,  at  p.               465 :               "In   order  to  discover  the  intention   of               Parliament it is proper that the court  should               read the whole Act, inform itself of the legal               context of the Act, including Acts so  related               to  it  that  they may throw  light  upon  its               meaning,  and of the factual context, such  as               the mischief to be remedied,               4 86               and  those circumstances which Parliament  had               in  view, including in this case the death  of               the last of Quen Anne’s Children and the state               of  the family of the Princess Sophia.  It  is               the  merest  commonplace  to  say  that  words               abstracted from context may be meaningless  or               misleading." Primarily, the key to the opening of every law is the reason and  spirit  of  the law-it is the animus  impotent  is  the intention  of  the lawmaker, expressed in  the  law  itself, taken  as  a whole.  We must also notice that  not  much  is gained  by  the  caution  that where  a  word  is  ambiguous extraneous aids can be used, because an ex facie unambiguous word  may acquire one of many alternative shades of  meaning given  a statutory setting.  John Dewey is right (as  quoted by Reed Dickerson):               "Dewey,  although conceding that ’no term  has               logical  force  save in distinction  from  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........

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             (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  ruling  in   River   Wear Commissioners v. Adamson (2 App.  Cas. 743, HL 1877)               "......  (W)  e are to .... (give)  the  words               their  ordinary signification, unless when  so               applied  they produce an inconsistency, or  an               absurdity  or  inconvenience so  great  as  to               convince the.  Court that the intention  could               not  have been to use them in  their  ordinary               signification,  which though loss  proper,  is               one  which the Court , thinks the  words  will               bear.". This Court has veered to the view that whatever is logically relevant  is legally look-at-able, See : State of Mysore  v. R. V. Bidap 487 (1974)  3 SCC 337 and Dattaraya Govind Mahajan v.  State  of Maharashtra  (1977)2  SCC 548.  Truth is  not  a  cloistered virtue but carefully to be located.  The universe of meaning is  not  a  soundproof system nor a noisy  babel.   We  have guidelines,   not   rituals.   The  rule  is   not,   always literality,  for  that  sounds  like  bigotry.   Nor  is  it whatever   the   interpreter   chases,   like   historicity, sociology, contextuality and a host of fancy-dress fashions, for that will create unwarranted variances and supersede the law-maker by a side-wind.  Words used designedly by  trained draftsmen and authenticated by purposeful legislators,  must possess  a  mandate, a meaning and a mission.  That  is  its sense. Therefore,  we  are inclined to the  view  that  legislative history plus, within circumspect limits, may be consulted by courts  to resolve ambiguities, warning themselves that  the easy abuses of legislative history and like matrix  material may  lead to the vice of occult uncertainty and wresting  of legislative power from where it belongs. (See Reed Dickerson Ch. 10 on ’The Uses and Abuses of Legislative History).  The history of events transpiring during the process of enacting an  act has generally been the first extrinsic aid to  which courts  have turned in attempting to construe an  ambiguous act,  (Sutherland $ 48.04). It may be reasonable  to  accept the  statement of Mr. Justice Jackson in Schwegmann Bros  v. Calvert Distillers Corp. (341 U.S.384, 395-397) :               "By  and large, I think our function was  well               stated  by  Mr. Justice Holmes :  ’We  do  not               inquire  what  the legislature meant;  we  ask

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             only what the statute means." . . . And I  can               think  of  no better  example  of  legislative               history that is unedifying and  unilluminating               than that of the Act before us."               (Dickerson, p. 163) Similar is Frankfurters’ three-fold 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 country clubs               or in the cemetry.               [C.   Curtis,   A  Better  Theory   of   Legal               Interpretation,  3  Vand  L.  Rev.  407,   415               (1950),  rephrased  in It’s Your  Law  54,  55               [1954)] (Dickerson, p. 245) While  we agree that judicial interpretation should  not  be imprisoned  in  verbalism and words lose their  thrust  when read  in  vacuo, we must search for  a  reliable  scientific method  of discovery rather than the speculative  quest  for the  spirit  of  the statute,  and  the  crossthoughts  from legislators’  lips or Law Commissioner’s pens.   They  edify but are not edictal. In  Hutton v. Phillips, the Supreme Court of Delaware  threw useful  light  on the use of  contextual  and  environmental background to correct construction of statutes :               ". . . (Interpretation) involves far more than               picking out dictionary definition of words  or               expressions   used.   Consideration   of               the  context and the setting is  indispensable               properly  to ascertain a meaning.   In  saying               that   a   verbal  expression  is   plain   or               unambiguous, we mean little more than that  we               are convinced that virtually anyone  competent               to  understand  it, and  desiring  fairly  and               impartially  to ascertain  its  signification,               would  attribute  to  the  expression  in  its               context  a meaning such as the one we  derive,               rather than any other; and would consider  any               different meaning, by comparison, strained, or               far-fetched, or unusual, or unlikely.               expression  in its context, is a finding  that               such meaning is rational and ’makes sense’  in               that context."

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             [45 Del. 156-70 A. 2d 15 (1949)] "An  explanatory  tale  should  not  wag  a  statutory  dog" (Attributed  to  Jones, C.J. in A.P. Green  Export  Co.,  v. United  States,  284 F. 2d 383, 386)  (Dickerson,  p.  137). True.   But ’the meaning of some words in a statute  may  be enlarged  or restricted in order to harmonize them with  the legislative  intent  of the entire statute ....  It  is  the spirit....  of  the  statute which should  govern  over  the literal  meaning.’  (Hanley,  J., in Town  of  Menominee  v. Skubits.  53 Wis. 2d 430, 437) (Dickerson p.  198).   Labels like   strict  or  liberal  construction  or   totems   like ’context’, ’spirit’, ’cognitive’ and ’creative’ do not solve the  problem.  The only way we may  scientifically  approach the  interpretative problem raised in this case is  to  show deep reverence to the lovely sum-up by Benjamin Cardozo :               "We  may figure the task of the judge,  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               489               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  what we have, said, we may refer to, a fundamental  con- sideration  which must be, regarded almost as  inspirational in  the  art of interpretation of a  Constitution  when  the clauses  to  be construed are so cardinal as to  affect  the basic   structure  of  the  national  charter,   Viz.,   the independence of the judiciary.  To dissect a  constitutional provision  meticulously as if it were a cadaver is  to  miss the  life of the charter we are expounding.  To  change  the metaphor,  then  the  arrow hits a mark  ’the  archer  never meant’. Shri  Seervai  set tremendous store by the  contention  that Article  217(1), proviso, (c), Article 222 and a  family  of ’judicial’ articles dealing with the superior court  judges, including the items in schedule III relating to Form of Oath prescribed for judges, highlight the sacrosanct character of the  infrastructure constructed by the Constitution  as  the delivery  system  of justice.  The Chapter  on  ’subordinate judiciary’ was also touched upon. Shri Gupte, the learned Attorney General, assured the  Court that he and his client were second to none in upholding  the

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independence  of  the  judiciary  but  contended  that   the doctrine  could  not  be  pressed in  its  extreme  form  to undermine  a clear power vested in the President.  To do  so would be to defeat the intent and purpose of the Article  by the  covert process of construction.  Indeed, he went on  to state  that there was no contradiction between the power  to transfer,  under  Article  222, and the  insulation  of  the judiciary   from  the  tantrums  and  allurements   of   the Executive.  This controversy takes us to 4 90 the   pivotal   role  of  judicial   independence   in   our constitutional scheme and its impact on the terms of Article 222(1). We  have not the slightest doubt that, having regard to  the enormous   undertakings  a  Welfare  State,  such as   is envisioned   in  our  Constitution,  has  to  launch   upon, government and government controlled    institutions becomes litigants in a variety of ways in the courts of the country. And, if a litigant has, in another capacity, power     of transfer  over  the Court, the situation is apt  to  become murky     unless  the constitutional lines for the  play  of that power are clearly   drawn and the highest Court in  the land holds the Executive within    the  leading  strings  of constitutional limitations.  Power, Executive     power   in enormous measure, vests in the President, and in the Cabinet system  and  in 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 paramount to the ensemble of values which makes a people free.  It  is not   as  if  judicial  independence  is  an  absolute   end overriding  the  people’s  well-being.   ’Nothing  is   more certain in a modem society’, declared the U.S. Supreme Court at  mid-century,  ’than  the principle  that  there  are  no absolutes’.   The  world of law, like that of  physics,  was perceived only as the relativity of one value compared  with another."   (Schwartz,  p.  269-70).   This  relativity   is inevitable in a changing society like ours.  Even in America ’theold justice in the economic field (affirmed  John,Dewey) consisted’ chiefly in securing to each individual his rights of property or con-, tracts.  The new justice must  consider how it can secure for each individual a standard of  living, and such a share in the values of civilisation as shall make possible  a  full  moral life."  (Schwartz,  p.  271).   The nostalgic image of celestial justices wearing  ’independent" ermine.  unsullied  by the dusty soil ’where the  tiller  is tilling the hard ground and where the pathmaker is  breaking stones’  will be, rebuffed by Justice, social and  economic,

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with the reproof in the Gitanjali : ’Put off thy holy mantle come  out of thy meditations. Meet him and stand by  him  in toil  and  in  sweat  of  thy  brow’.   The  point  is  that Deliverance  of  the  People is the  basic  vision;  Justice fills: 491 that  vision with life when, in term-, of the Institutes  of Justinian, it ’is the constant and perpetual wish to  render to every man his due’; and independence of the justices is a necessary  means to that endless end and, contrary  thereto, if   Judges  declare  for  themselves   socially   untenable ’independence’ of the interests of ’the People of India’ the picture  Pets  distorted.  This  perspective  illumines  the nation’s  charter  which  invests  judges  with  power.   To idealise  independence of the judges beyond the  profile  of the  Constitution  is to self-colonise our  country’s  life- style.  And, Bejamin Cardozo has, with beautiful  bluntness, expressed   how   the  sub-conscious   forces   and   social philosophies of judges hold their minds captive :               "Judges  cannot escape, that current any  more               than  other mortals.  All their lives,  forces               which  they do not recognize and cannot  name,               have been tugging at them-inherited instincts,               traditional beliefs, acquired convictions; and               the  resultant  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 conducive to that object, we must conceive the  ideology of  the  independence  of the judiciary.   Once  this  major premise  granted,  ’hands off judges’ is too  sacred  to  be sacrified.    For  corrosion  of  ’the   court’s   authority conscientiously   to  adjudicate,  undaunted  by   executive displeasure or other forms of pressure, is the subversion of the surest institutional guarantee of life, liberty and  the pursuit of happiness. We  agree  broadly with the- learned Attorney  General  that where  the first principle of ’ justice to the community  is contradicted by the continuance of the judge in a particular State,  the,  ’independence’  principle  will  have  to   be harmonized  with  the cause of compelling  public  interest. Indeed,  the  independence  of the judiciary  is  itself a necessitous   desideratum   of  public   interest   and   so interference  with  it is impermissible except  where  other considerations  of  public interest are so  strong,  and  so exercised as ’not to militate seriously against the

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492 free  flow of public justice.  Such a balanced blend is  the happy   solution  of  a  delicate,  complex,   subtle,   yet challenging  issue  which bears on human  rights  and  human justice.  We agree with Sri Seervai that the plea that  some judges are corrupt and therefore the Executive must have the power  to  put  any judge out of a State is  a  remedy  that aggravates the malady.  It is a balancing of evils.  And, it judicial  vice  at  that  level  is  negligible  and  gently manageable,  why  temporise  on a priceless  value?   A  few scapegraces among justices cannot be an alibi for making the whole judicature scapegoat. The  nature  of  the judicial process  is  such  that  under coercive  winds  the flame of justice flickers,  faints  and fades.   The still small, voice is smoothened by  subjective tribulations  and  anxieties and, if  coerced,  trembles  to objectify law and justice.  The true judge is one whose soul is  beyond purchase by threat or temptation,  popularity  or prospects.   To float with the tide is easy; to counter  the counterfeit  current is uneasy.  And yet the judge  must  be ready for it, if needed.  By habit and training, by the open process  of ’adversary’ hearing and ordinary obligation  for written  reasoning,  by  the moral fiber of  his  peers  and elevating tradition of his profession, the judge develops  a stream  of  tendency to function ’without  fear  or  favour, affection  or illwill’, taking care, of course, 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 Constitution  of a vital bent servant but  a  constitutional functionary.         He stands in a different category.   He cannot  be  equated  with  other  ’services’  although   for convenience  certain  rules applicable to  the  latter  may, within limits. apply to the former. Imagine a judge’s  leave and  pension  being  made  precariously  dependent  on   the Executive’s pleasure.  To make the government-not the State- the  employer  of a superior court judge is to  unwrite  the Constitution.  To conclude: on this branch, we cannot  tear off  the text of Article 222 and put it under  a  microscope but  must master the scheme and setting and  describing  the meaning beyond the political sunrises and sunsets of passing seasons.  Indeed, the spiritual quiet and spiritual quest of the judges toils lies here.  We may listen to Chief  Justice Hidayatullah’s chastening words 493               "One  must,  of  course,  take  note  of   the               synthesised authoritative content or the moral               meaning  of  the underlying principle  of  the

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             prescriptions  of  law,  but  not  ignore  the               historic evolution of the law itself or how it               was  connected in its changing moods with  the               social requirements of a particular age.  " * Sri Seervai called attention to other articles, the form  of oath prescribed for judges, the need for oath while assuming office  on transfer etc., to support his main plea.   We  do not  think that this submission advances his  case  further. Even  so,  we  will  briefly  examine  the  merits  of   the submission.   ’Transfer’, according to Sri Seervai, is  used in  this  Chapter,  as  taking  colour  from  ’appointment’. Appointment  to a post or office can be only by consent  and so,  if  transfer partakes of the  element  of  appointment, consent of the transferee is necessary. In  ’service’  vocabulary,  familiar  to  the   Constitution framers, the concepts of appointment and transfer are clear. But  Shri Seervai took as through many articles  to  suggest that   either  ’transfer’  was  used  in  the   company   of ’appointment’ or in such other milieu as to limit the former to  cases of consent transfer.  He also invoked the rule  of nosciteru  socii  to  impart  a  consentaneous  flavour   to ’transfer.   Captivating,  not  convincing,  is  our   short comment. The  basic assumption, with which, in the abstract,  no  one can  quarrel,  is  that  appointments can  be  made  not  by conscription  but  by  willingness  of  the  appointee,  and founded  or  this 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.  From  this it was sought to be inferred that a judge, on transfer,  bad to  be appointed to another High Court.  A few more of  such somewhat  finical instances were picked out, and scanned  at the micro-level to broad-base the theory that ’transfer’  in the scheme of Chapter VI Part V covered only such shifts  as were  concurred  in by the transferee.  Having  given  close thought to the thesis, presented with an eye on 4 94 detail  and  woven into a fine web, we are not  inclined  to agree  that the plain meaning of transfer under Article  222 can be whittled down in the manner suggested.  To be  subtle may not always be to be sound.  The learned Attorney-General explained  that Article 216 merely set out the  constitution of  the court as including the Chief Justice and such  other judges   as   the   President   chose   to   appoint.    The contradistinction  between ’appoint’ and ’transfer’ did  not arise  in the, situation.  Likewise, proviso (e) to  Article 217  (1)  covered two separate categories and  two  separate

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situations giving rise to vacancy in the Office of Judge  of a High Court.  The first was when a High Court judge was ap- pointed  to  the Supreme Court; the second was when  he  was transferred to any other High Court.  To telescope, the  two to  deduce the common element of consent was to mix  up  two distinct categories without any warrant.  On the other hand, the  use in the Constitution of the two words ’appoint’  and ’transfer’   separately   brings  into   bold   relief   the distinction between the compulsory process of transfer  and’ the  voluntary  acceptance needed for an  appointment.   The learned   Attorney-General   was  inclined  to   urge   that technically a fresh oath was not even necessary when a judge was transferred from one High Court to another.  Perhaps the form  of  oath specifies the High Court  and,  therefore,  a transfer may necessitate a second oath with reference to the transferee High Court.  Even so, that does not tell upon the construction of the expression ’transfer. A  few  other factors contradicting the  notion  that  fresh appointment  was implied in every transfer were  highlighted by the learned Attorney-General.  Minor    verbal  vagaries, [see  Schedule  11  Part IV (11)] even  if  discovered  were inconsequential where the thrust of the particular provision was strengthened by other considerations, If  the  transfer of a judge is tantamount to  his  de  novo appointment,  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 decode the concerned  Article and deal with the matter in greater detail. 4 9 5 Article 222 of the Constitution runs thus               "Transfer  of a Judge from one High Court   to               another               (1)   The  President may,  after  consultation               with  the  Chief Justice of India  transfer  a               Judge         from one High Court  to  another               High Court.               (2)   When   a  Judge  has  been  or   is   so               transferred,  he shall, during the  period  he               serves,   after   the  commencement   of   the               Constitution (Fifteenth Amendment) Act,  1963,               as  a  Judge  of  the  other  High  Court,  be               entitled to receive in addition to his  salary               such   compensatory   allowance  as   may   be               determined by Parliament by law and, until  so               determined, such compensatory allowance as the               President may by order fix.".

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The  key  words  in  this  Article  are  ’consultation’  mid ’transfer’.   What  is  consultation,  dictionary-wise   and popular  parlance-wise?  It implies taking counsel,  seeking advice.   An element of deliberation together is  also  read into the concept.  "To consult" is to apply to for guidance, direction or authentic information, to ask the advice of  as to  consult  a  lawyer; to discuss  something  together;  to deliberate."  Hewey  v.  Metropolitan Life Ins.  Co.  62  A. 600,602,100  Ne.  523 The word "consult" means to  seek  the opinion or advice of another; to take counsel; to deliberate together;   to   confer;  to  apply   for   information   or instruction.   C.I.R.  v.  John A.  Wathen  Distillery  Co., C.C.A.  147 F. 2d 998, 1001............. Consult"  means  to seek  opinion  or  advice of another, to  take  counsel;  to deliberate  together;  to  confer;  to  deliberate  on;   to discuss;  to take counsel to bring about; devise;  contrive; to  ask advice of; to seek the information of; to  apply  to for  information or instruction; to refer to.  Teplitsky  v. City of New York. 133 N.Y.S. 2d 260, 261"-Words and Phrases- Permanent Edition-Volume 9 Page 3               Stroud’s  Law Lexicon  defines  ’consultation’               thus               CONSULTATION, New Towns Act, 1946 (9 & 10 Geo.               6,  c. 68), s. 1 (1) 1, "   consultation  with               any  local authorities."  "Consultation  means               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"-per   Bucknill,               L.J., in Rollo v. Minister of Town and Country               Planning, [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 President such counsel of  action  as he thinks will further the  public  interest, especially  the  cause  of  the  justice  system.   However, consultation  is  different from  consentaneity.   They  may discuss  but  may  disagree; they may  confer  but  may  not concur.   And in any case the consent of the Judge  involved is  not a factor specifically within the, range  of  Article 222. The expression ’transfer’, as we have already indicated,  in the  context  of  service jurisprudence is  not  limited  to

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consensual transfer.  A. transfers B. when he has the  power to shift him from one place to another or from one  position to  another.  Intrinsically, in its transitive use, it  does not  imply  the consent of the transferee.   Of  course,  in appropriate  cases such consent may be a justifiable  course or  desirable  in  the  circumstances.   We  may   visualise situations  where  seeking  the  consent  of  the  potential transferee  may be a self-defeating operation.  We need  not explore these aspects but may conclude that terminologically or  in  the  spirit of the, provision, it is  not  right  to insist  that  ’transfer’ has, as one of its  components  the consent  of the transferee or even of the Chief  Justice  of India.   The  risk of rejecting the mature  and  specialised counsel of the Chief Justice is not far to seek. It  would be seen that there is absolutely no  provision  in this Article requiring the consent of the Judges of the High Court  before  transferring  them from  one  High  Court  to another.   Indeed, if the intention was that such  transfers could  be made only with the consent of the Judges  then  we should  have  expected a proviso to Article 222(1)  in  some such terms as : "Provided no Judge shall be transferred from one High  Court to another without his consent." The  absence  of such a provision shows  that  the  founding fathers  of the Constitution did not intend to restrict  the transfer of Judges only with their consent.  It is difficult to  impose limitations on the constitutional  provisions  as contained in Article 222 by importing the concept of consent which  is  conspicuously absent-therefrom.  It  has  already been  pointed  out above that the Government of  India  Act, 1935  did not contain any provision for transfer  which  was effectuated  by  appointing a Judge of one High Court  as  a Judge  of another High Court.  The draft  Constitution  also contained  no  such  provision for transfer  but  when  the, Constitution was finally 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   judicial administration where the Chief Justice would become more  or less powerless.  In our opinion, the founding fathers of the Constitution could not have contemplated such a situation at all.  That is why Article 222 was meant to take care of such contingencies.   It was suggested by Mr, Seervai that  if  a Judge  misbehaved,  he could be impeached according  to  the provisions  of the Constitution rather than  transferred  by way  of  punishment.  This argument fails  to  consider  the

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practical   aspects  of  the  matter.   It  is   not   every misbehavior or misconduct which may be sufficient to impeach a  Judge  and  indeed it would be difficult  to  prove  such misconduct  or  misbehaviour in the manner provided  by  the Constitution  in  a  large  variety  of  cases.   Principled pragmatism  is  the soul of policy.  The very fact  that  by withholding  consent  the Judge is in a position  to  reduce Article 222 to a dead letter so as to deprive it of potency, clearly shows that the Constitution-makers never intended to make redundant provisions. Viscount  Simon,  L.C.  in the case of  Nokes  v.  Doncaster Amalgamated  Collieries  Ltd.  1940 A.C.  1014  observed  as follows :               "If the choice is between two interpretations,               the  narrower of which would fail  to  achieve               the  manifest purpose of the  legislation,  we               should avoid a construction which would reduce               the legislation to futility and should  rather               accept  the bolder construction based  on  the               view that Parliament would legislate only  for               the  purpose  of bringing about  an  effective               result." For these reasons it is not possible for us to read the word ’consent’ in Article 222 on a construction of the plain  and unambiguous language of the Article.  As earlier noticed  it was contended by Mr. Seervai that the Constitution  contains provisions  in  order  to  show  the  independence  of   the judiciary and if we imply consent in Article 222 it will  be in  keeping  with the spirit of the Constitution.   We  are, however,  unable to agree with this argument.   A  provision empowering the President to transfer a Judge, from one  High Court  to another can in no way be regarded as  marring  the independence of the judiciary, given the gloss we have given to it.  It will be noticed that the power under Article  222 is hedged in by several safeguards.  In the first place, the power 8-930SCI/77 498 rests in such a high authority as the President who acts  on the advice of the Council of Ministers; 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  service for the first time and no body  can  be compelled to joint or enter a particular service against his consent.  In, these circumstances, therefore, appointment in the  very  nature of things implies express consent  of  the appointee.   The same, cannot be said of a transfer after  a

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person  is  appointed to a service because  transfer  is  an incident  of service.  Once a person has entered service  he is  bound by the conditions imposed either by  the,  Service Rules  or the Constitutional provisions.  No,  person  after having joined the service can be heard to say that he  shall not  be  transferred from one place to another in  the  same service  without his consent.  Having accepted  the  service the  functionary  has no choice left in  the  administrative action  that can be taken by empowered authorities,  namely, transfer  from  one  place to another,  assignment  of  work and Judge is   appointed  appear  in the  Constitution  well before Article 222. A Judge   of  the  High  Court  when  be accepts  an appointment is fully aware of Article 222  under which he can be transferred from one, High Court to  another and if being fully conscious of Article, 222 he accepts  the appointment as a Judge, of the High Court he cannot be heard to  ,say that he cannot be transferred without his  consent. In  these circumstances, therefore, we are unable  to  agree with Mr. Seervai that the terms appointment and transfer  as used in the Constitution are interchangeable terms conveying the  same meaning.  On the other hand, Article 217  (1)  (c) runs thus :-               "The office of a Judge shall be vacated by his               being appointed by the President to be a Judge               of   the  Supreme  Court  or  by   his   being               transferred by the President to any other High               Court within the territory of India." It  would be seen that in this constitutional provision  the words   "appointed"   and  "transferred"  have   been   used separately  conveying  different connotations;  and  if  the Constitution  makers  had used these two terms in  the  said subject in different contexts it cannot be argued 4 9 9  that  these  two terms are interchangeable.  On  the  other hand,  an  analysis of Article 217 (1) (c) shows  that  the, constitutional  provision  makes  a  clear-cut   distinction between  appointment and transfer.  Similar  arguments  were also  advanced by the respondents regarding the  requirement of an oath as contained in Article 219 and it was  contended that because a transferee, 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 be transferred without his consent. Again,  there  are clear indications in the  scheme  of  the Constitution  itself to, show that a distinction  is  sought to, be made between appointment and transfer as pointed  out above,  and  even the need to take consent,  and  when,  was

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resent to, the mind of the makers of the Constitution.   For instance,  Article  224A is a provision for  appointment  of retired Judges.  The proviso expressly enjoins that a  Judge shall  sit  and act as a Judge of the High  Court  with  his consent.  The proviso to Article 224A runs thus:-               "provided  that nothing in this Article  shall               be  deemed  to  require  any  such  person  as               aforesaid  to sit and act as a Judge  of  that               High Court unless he consents so to do." The reason for insisting on consent is that a retired  Judge cannot  be compelled to work as an ad hoc Judge against  his consent because, after having retired from service he ceases to  be  a Judge of the High Court and is not  bound  by  the conditions  of service.  On the other hand, in  Article  127 which  provides  for appointment of a sitting Judge  of  the High  Court to act as an ad hoc Judge of the Supreme  Court, there is an express provision in the shape of clause (2)  of Article  127  making it incumbent on the sitting  Judges  to attend the sittings of the Supreme Court.  Here the  consent of  the  sitting  Judge of the High  Court  is  not  needed. Clause (2) of Article 127 runs thus :-               "It  shall  be the duty of the Judge  who  has               been  so  designated,  in  priority  to  other               duties of his office to attend the sittings of               the,  Supreme  Court at the time and  for  the               period  for which his attendance is  required,               and while so attending be shall               5 0 0               have   all   the   jurisdiction   powers   and               privileges, and shall discharge the duties, of               a Judge of the supreme Court." Mr. Seervai sought to make a distinction on the ground  that the  word  ’request appearing in Article 127  clearly  shows that the Judge must give his consent before he can be  asked to  work  as  an  ad hoc Judge.  In  our  opinion,  such  as interpretation is not possible.  The word ’request’ has been used  as a matter of courtesy because the, previous  consent of  the President of India is taken by the Chief Justice  of India  and  then  a request is made to,  the  sitting  Judge concerned.   It  is  only  in this  context  that  the  word ’request’  has been used but the language of clause  (2)  of Article 127 is clear 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  was  then argued that in the, case  of  the  subordinate judiciary the power of transfer is vested in the High  Court whereas in the case of High Court Judges it is vested in the

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executive  authority,  namely, the President acting  on  the advice  of the Council of Ministers and thus if Article  222 could be utilised without the consent of the Judges when the Judges  of  the  High Courts would be  worse  off  than  the members of the subordinate judiciary’ This argument,  though attractive,   fails  to  take  into  consideration   certain important  factors.  In the first place, in the case of  the subordinate  judiciary  transfer  being  one  of  the  usual incidents of the service and being a usual feature which has to take place, from time to time the power vests in the High Court.  As already indicated, the power under Article 222 is to  be exercised only exceptionally and in public  interest; and  where it becomes expedient and necessary in the  public interest,  especially of judicial administration,  effective consultation with the Chief Justice of India, as a sine  qua non, takes care of executive intrusions. Lastly,  it was submitted that during the last 25 years  the Government  had itself interpreted Article 222  as  implying consent  and a large number of Judges who  were  transferred during this period were transferred only with their consent. A  schedule  to the petition gives details of  such  Judges. Reliance was placed on the speech of Mr. Asoke Sen where  be bad said that a healthy convention should be 501 set up not to transfer judges from one High Court to another without  their consent.  It was thus argued that  those  who were  in charge of the working out of the  Constitution  had themselves interpreted Article 222 so as to imply consent of the  Judge  before transferring him from one High  Court  to another. A  table  of  judges  transferred  with  their  consent  was furnished, hopefully to drive home the plea that the working of Art. 222 for a silver jubilee span of years  acknowledged that  consent of the transferee was a  necessary  component. Two  comments nullify this wishful thinking.   A  long-held, wholesome  convention  is  a tribute to the  wisdom  of  the President and his advisers and the Chief Justice, but cannot amend  the  sure  import  of  the  provision  by  hindsight. Secondly, closely analysed each such transfer has  benefited immediately  the  Judge concerned.  His consent, in  such  a situation,  can  never  be  a guide  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 sum up, the impact of other Articles,  the embrace  of  the  ’independence’  creed,  the  influence  of administrative  precedents and the explosive allergy to  the

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plurality  of  transfers  which are not  before  the  Court, cannot  be permitted to subjectify judicial construction  to invite  the  comment ’Thy wish was father, . . . .  to  that thought’.   Charity to the capacity of the illustrious  dead whose  learned  toils and deliberate pens drafted  Art.  222 behaves  us not to stultify them in their silent  graves  by slurring  over  the  express  language  interpretatively  to invent a hidden veto power. The next point for consideration in this appeal is as to the nature,  ambit  and scope of consultation, as  appearing  in Art.  222(1) of the Constitution, with the Chief Justice  of India.   The consultation, in order to fulfil its  normative function  in  Art. 222(1), must be a real,  substantial  and effective  consultation based on full and  proper  materials placed  before the Chief Justice by the Government.   Before giving  his  opinion  the  Chief  Justice  of  India   would naturally  take into consideration all relevant factors  and may informally ascertain 502 from  the  Judge  concerned  if he  has  any  real  personal difficulty or any humanitarian ground on which his  transfer may  not be directed.. Such grounds may be of a  wide  range including  his health or extreme family factors.  It is  not necessary  for the Chief Justice to issue formal  notice  to the Judge concerned but it is sufficient-althongh it. is not obligatory-if  he  ascertains these facts  either  from  the Chief  Justice of the High Court or from his own  colleagues or  through any other means which the Chief  Justice  thinks safe, fair and reasonable.  Where, a proposal of transfer of a  Judge is made the Government must forward every  possible material to the Chief Justice so that he is in a position to give  an effective opinion.  Secondly, although the  opinion of  the  Chief Justice of India may not be  binding  on  the Government it is entitled to great weight and is normally to be  accepted  by  the Government  because  the  power  under Article 222’ cannot be exercised whimsically or arbitrarily. In the case of Chandramouleshwar Prasad v. Patna High  Court &  Ors.(1)  while interpreting the  word  "consultation"  as appearing  in  Article 233 of the  Constitution  this  Court observed as follows :-               "Consultation   with  the  High  Court   under               Article 233 is not 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

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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 matter of constitutional courtesy in  view of the fact that two very high dignitaries are concerned  in the  matter, namely, the President and the Chief Justice  of India.   Of course, the Chief Justice has no power of  veto, as Dr. Ambedkar explained in the Constituent Assembly. The  dangers of arbitrary action or unsavoury  exercise  has been   minimised  by  straight-jacketing  of  the   power-of transfer.  Likewise, the high legal risk of invalidation  of any  Presidential  order  made in the  teeth  of  the  Chief Justice’s   objection,  runs  in  an   added   institutional protection.  For it is reasonable for the court before which a Judge’s transfer is challenged, to take a skeptic view and treat  it as suspect if the Chief Justice’s advice has  been ignored.  And, in the light of (1) [1970] SCR 666. (2)  AIR 1974 SC 2192. 5 0 3 the protective responsibility lying on the shoulders of  the Chief  Justice  in  filling the  bill  as  a  constitutional consultant  and the chance of successful challenge,  if  the consultation proves a futility from either end, the,  judges of  the High Court can enjoy all reasonable  immunity.   The monitoring  mechanism  will work well.  And, where  it  does not,  the Court, sitting in review of the action  challenged (we   hope  these  occasions  will  be  rare  and   judicial demolition  of  presidential  orders  extremely  few)   will remember that the highest constitutional functionaries  have an  accountability  to the justice constituency,  i.e.,  the nation, that transfer is an exception but not totally banned and  that  a vicious or wayward judge cannot  expect  better justice  or an independent judge of probity better  immunity than is provided in the Constitution which binds him. The speech of Shri A. K. Sen (Law Minister), the 14th Report of  the Law Commission of India opposing and resolutions  of the  bar in 1967 favouring transfers of judges  are  neither here  nor  there.  Nor can the heroic  chapters  of  British judicial history directly assist to interpret.  Each  nation has  its developmental course and derives  inspiration  from several sources.  And the Court must decide on the basis  of the Constitution as it is. Logamachy  may confuse, philosophy may  illumine,  teleology may  shed  interpretative  sheen.  We  have  considered  the design,  the source, the impact and the engineering  aspects of  Article 222.  At the end of the journey we feel  clearly that  the  power of non-consentaneous transfer  does  exist. 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

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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.  The 1st respondent has, fighting for  a cause,   won  the  battle  and  the  war.   The   appellant, venerating  the constitutional creed, has gained its  object of  getting the battle lines drawn clear and of  delineation of  the dharma concretising the zones of the  President  and the  Chief Justice in the delicate function of  transfer  of High Court judges.  Avoiding callous under-esti- 504 mation  and  morbid exaggeration, we must realise  that  the independence of the judiciary is vital but is only an  inset in the larger picture of the nation’s free, forward march. UNTWALIA, J.-On or about the 27th May, 1976 about 16  Judges including  some  Chief Justices of the various  High  Courts were  transferred  by the President of India from  one  High Court  to  another.  It is said that it was so  done,  after consultation  with the Chief Justice of India.  One  of  the Judges  transferred  was Shri Justice  Sankalchand  Himatlal Sheth, a Judge of the High Court of Gujarat.  He was  trans- ferred   to   the  High  Court  of  Andhra   Pradesh.    The notification transferring him reads as follows               "In exercise of the powers conferred by clause               (1)  of,  Article 222 of the  Constitution  of               India,  the President after consultation  with               the  Chief  Justice of India,  is  pleased  to               transfer  Shri  Justice  Sankalchand  Himatlal               Sheth  Judge of the High Court of Gujarat,  as               Judge of the High Court of Andhra Pradesh with               effect from the date he assumes charge of  his               office." Shri Justice Sheth challenged the order of his transfer by a writ petition filed in the Gujarat High Court.  In pursuance of the order, however, he     joined the Andhra Pradesh High Court  and did not ask for any stay.  His writ petition  was heard by a Special Bench           of three Judges, who by a unanimous order, although for some varying reasons given  in their separate judgments, declared the transfer order  dated May  27,  1976 as illegal, invalid and  ultra  vires.   They issued  mandamus  against  the Union  of  India,  the  first respondent  in the writ petition, to treat the, said  order’ as  of no legal effect and to desist from giving  effect  or continuing  to give effect to it.  The Union of India  filed the present appeal by certificate of the High Court  granted under Articles 132 and 133(1) of the Constitution of  India. The  Judge  concerned is Respondent No. 1 in  this’  appeal. Shri Ajit Nath Ray, the then Chief Justice of India, who was also  made  a  party respondent in  the  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

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             Respondent   No.  1  Justice  S.   H.   Sheth)               withdraws the writ petition with leave of  the               Court." 505 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. The  Judicial Committee of the Privy Council in the case  of Ardeshir  Matha  v. Elora Sassoon(1) had adopted  a  similar course    almost   under   similar   circumstances.     Lord Olanesburgh, in delivering the judgment of their  Lordships, observed as follows at page 366               "In his argument before the Board counsel  for               the  respondent placed his view of the  matter               in  the forefront of his argument and  it  was               fully dealt with by Mr.Upjhon in his reply for               the  appellant.  In these circumstances  their               Lordships  think,  that whether  or  not  this               appeal  can  be disposed  of  without  further               reference  to it, they ought to express  their               views upon so important a question of practice               now that it has been raised and fully  argued.               In  such a matter certainty is more  important               than anything else.  A rule of practice,  even               if  it  be  statutory, can when  found  to  be               inconvenient    be   altered   by    competent               authority.  Uncertainty in such a matter is at               best an embarrassment and may at its worst  be               a  source of injustice which, in some  cases,               may be bound Judicial remedy.  Accordingly, in                             this judgment, their Lordships will deal  with               all  the matters in controversy to which  they               have  referred, irrespective of  the  question               whether  the  last of them  of  necessity  now               calls for determination at their hand". Broadly  speaking,  only  two or three  points  require  our careful consideration and adjudication.  Several points were urged before the High Court but Mr. Seervai candidly  stated before  us  that he did not want to pursue  and  press  the question  of  promissory  estoppel  and  the  principle   of violation  of  natural justice before making  the  order  of transfer.   He, however, submitted with great emphasis  that the   power  of  transfer  under  Article  222(1)   of   the Constitution  could  not  be, exercised  or  made  effective without the consent of the Judge concerned.  In the  context of  the high pedestal and the independence of the  judiciary enshrined  in  our  Constitution and some  of  the  relevant articles  the transfer envisaged was a  consensual  transfer and not a unilateral order of transfer forcing a Judge to go from one High Court to the other.  Counsel further submitted that the consultation with the Chief Justice of India spoken of  in  the article aforesaid cannot be a  mere  formal  ’or nominal consultation just by way of an empty formality.   It must  be  real  and effective after  placing  all  materials before the Chief Justice of India 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. 506 him in his discretion but it has got to, be exercised on the advice  of  the  Council  of  Ministers  or  the   Ministers

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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 rightly conceded by Mr. Seervai,  is not  bound  to accept and act upon the advice of  the  Chief Justice.  It may differ from him and for cogent reasons  may take a contrary view.  In other words, as held by this Court in the case of Chandramouleshwar Prasad v. Patna High  Court &  Ors.(1)  the  advice is not  binding  on  the  Government invariably and as a matter of compulsion, in law.   Although the  decision  of this Court in  Chandramouleshwar  Prasad’s case  was with reference, to the interpretation of  Articles 233  and  235  of the Constitution, on  principle  there  is hardly any difference. To  invoke the principle of natural justice in the  case  of transfer of a Judge under Article 222(1) if otherwise it  is permissible  to make the transfer without his consent,  will be, stretching the principle, to a breaking point.  It  will lead  to many unpractical, anomalous and absurd results  and will have inevitable repercussions in the order of transfers made in other branches of service either under the Union  or the  States.  The only thing one may say is that it will  be open to the Chief Justice of India, rather, he will be well- advised  to  do  so, to make such inquiries  and  from  such quarters  as he may think, fit and proper to do in order  to satisfy  himself apropos the desirability, advisability  and the necessity of the proposed transfer.  Inquiries from  any of  his colleagues in the Supreme Court and especially  from the  one  coming from the High Court, a Judge of  which,  is proposed to be transferred as also from the concerned  Judge will be highly beneficial and useful. In terms there is nothing indicated in Article 222(1) as  to what could be the basis of and the grounds on which an order of  transfer can be made.  It was, however, accepted by  all concerned  that  the  transfer can be made  only  in  public interest  or on the ground of public policy which  sometimes has  been  characterised  by eminent jurists  as  an  unruly horse.  A definition of these terms in a ’Strait  jacket  or an exhaustive list of matters of public interest is  neither feasible  nor advisable.  In answer to my query the  learned Attorney (1)[1970] 2 S.C.R., 666. 507 General was good enough to give a few examples, namely,  (1) that  a  particular Judge is not pulling on  well  with  the Chief Justice and his colleagues in the High Court; (2) that any  other High Court and especially a small one, needs  the services  of a Judge proficient in a 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

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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 situation the action being punitive  in natural justice.    Setting up of an impartial Committee  or Tribunal for’ deciding such   cases   of  transfer  may   be necessary  in  order  to maintain the  independence  of  the judiciary.   When an order of transfer is challenged by  the Judge   concerned   in  an  appropriate   legal   proceeding tremendous difficulties will have to be faced in the  matter of judging as to what extent the materials can be  disclosed in  court,  how  far the Government will be  able  to  claim privilege  from disclosure, how will be judged the truth  or otherwise  of the allegations made.  At this stage I am  not focussing  my attention on these matters for the purpose  of deciding any of the questions posed so far but I am doing so with  the  object of expressing my considered  view  on  the question  as to whether a transfer can be made  without  the consent  of  the  Judge concerned or not.   The  purpose  of national integration, if otherwise it is a good thing to  be achieved,  or the need of particular High Court for a  Judge possessing  a particular, type of proficiency or  some  such grounds of public interest can well be achieved at the  time of the initial appointments; as for example, a member of the Bar practicing in a particular High Court may be,  appointed at  the, very threshold, if he so agrees to be appointed,  a Judge of another High Court so that after retirement he  may come back and resume his practice in the High Court where be was so doing.  I shall, perhaps, be crossing my  permissible limits  if I embark ’to write an essay or a, thesis  on  the various  aspects of the needs of such public interest  high- lighting  the minus points also in them, nor will  it  serve any  useful purpose.  These are matters of  policy  decision entirely within the realm of the governmental     power. I.however,  cannot check myself from pointing out  one  more socalled  example  of  public  interest said to  be  in  the alleged justification of the  order of transfer.  I need not elaborately refer to all the facts 5 08 which  are in the records of this case to justify the  hints which  I  am going to throw hereafter.   The  provision  for compensatory allowance made in clause (2) of Article 222 was deleted in 1956 but was re-introduced in the year 1963  when Shri  A.  K. Sen was the Law Minister of the  Government  of India.   From his speech quoted in the judgment of the  High Court  as also from other facts given in the counter of  the 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

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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 order of transfer of ;so many Judges at one and the same time created a  sense of  fear  and panic in the minds of the  Judges  and  others throughout the country and led them to suspect strongly that the  orders of transfers were made by and large in cases  of Judges who had shown exemplary courage and independence even during the period of emergency in delivering judgments which were  not the liking of the men in authority, including  the judgments  in  many MISA cases.  I am not concerned  to  say here whether the judgments delivered were right or wrong. No body  can  say  that a Judge is liable  to  be  transferred. because he     has     delivered    a    wrong     judgment. But one thing is certain’. and     I  again take courage  to say so with the utmost responsibility that the panic created had  shaken  the very foundation and the  structure  of  the independence of the judiciary throughout the country. In  a democratic set up of our country, as enshrined in  the Constitution, the judiciary, in one sense is not a structure of  a very big magnitude, but surely it is like  a  watching tower  above  all the big structures of the other  limbs  of State.   From the top of its respective towers, the  highest judiciary either by it in the State or in the Centre keeps a watch like a sentinel on the functions of the other limbs of the State as to whether they are working in accordance  with the  law  and  the  Constitution,  the  Constitution   being supreme.   History  of the world in some  countries  is  not wanting  in examples to illustrate and indicate  that  those wishing  to  deviate from democracy do not always  like  and relish  the  watching  of their actions  by  the  sentinels; calculated  and  designed attempts were made  to  erode  the structure of the tower bit by bit.  There have been and  may be several methods to do so. One of them-may be, if there is any truth in it, to transfer Judges who 509 do  not toe the line of the Government in power or  fall  in the current of their philosophy. How dangerous will it be to permit  such     thing by granting of a bald  and  unbridled power to the Central Government to achievesuch an  object I   may  add  that  the  safety  valve  of   the   effective consultation with the Chief Justice of India may not  prove to  be sufficiently effective to check up this  tendency  of the  executive.  There may be several methods of setting  at naught   the  check  of  the  safety  valve.  it  needs   no elaboration. To some extent the remarks made by me 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

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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 either express or  implicit in  the  Article; nor do I think that Mr. Seervai  is  quite accurate and correct in pressing into service the canons  of interpretation  laid  down in some, of the cases  viz.,  The River Wear Commissioners v. William Adamson(1) and R. M.  D. Chamarbaugwalla  v. The Union of India(2).  There are  cases and  cases,  one line taking the view that no words  may  be added  to or subtracted from the statute while  interpreting it.   If it has a plain and unambiguous meaning it  must  be adhered to,.  If there is any ambiguity it  may be  resolved on principles well-known and fully established.   There   is another line of cases taking the view that the Courts should try to understand the real intention of the Legislature  and the  true  meaning  of the words used.  In  such  cases  the history  of  the legislation, its purpose, context  and  the object  to  be  achieved  were  pressed  into,  service  for interpreting  it even though the words used in  the  statute were not ambiguous or uncertain.  But I am of the view  that this  line  of reasoning will not solve  the  difficulty  of interpreting  Article  222 in the manner  suggested  by  Mr. Seervai.   The  key  to the solution  lies  in  the  various Articles  of the Constitution itself.  It is of a  different kind.  That key has to be discovered and found out, of (1)  [1876-77] 2A.C.743. (2)  [1957] S.C.R. 930. 510 course,  in  the background of the various salient  and  the highest  principles of maintaining the independence  of  the judiciary  as far as it is permissible to do so within  the, terms  of the Constitution.  There is no AU India  cadre  of High Court Judges in our country.  Of and on there has  been a  talk  or  debate  in this regard.   Whether  it  will  be advisable to do so or not is a very controversial matter and I refrain from expressing any opinion of mine on this  issue as it is neither advisable nor necessary to do so. Section  200 of the, Government of India Act, 1935  provided for  the establishment and constitution of a  Federal  Court consisting  of a Chief Justice and certain number  of  other Judges.   Under  subsection (3)(a) a Judge of a  High  Court (leaving   aside   the  details)  was  qualified   for   the appointment as a Judge of the Federal Court.  Under  section 200  a  High Court consisted "of a Chief  Justice  and  such other  Judges as the Governor General may from time to  time deem it necessary to appoint".  Under sub-section (2)  every Judge  of a High Court was entitled to hold office 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)

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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 incapacity. As  I have said above, there is no All India cadre  of  High Court  Judges.   Article 214 says.  "there shall be  a  High Court of each State".  According to Article 216 "Every  High Court shall consist of a Chief Justice and such other Judges as the President may from time to time deem it necessary  to appoint".   Appointment  and conditions of the office  of  a Judge of a High Court are provided for in Article 217  which clearly indicates that a qualified person is appointed as  a Judge of particular High Court in a particular State at  the threshold.  He is entitled to hold office as a Judge of that High  Court until he attains the age of 62 years.  But  this is  subject  to, three exceptions mentioned in  the  proviso appended to clause (1) of Article 217.  Provisos (a) and (b) respectively deal with the resignation from the office of  a Judge by his voluntary action and his removal from office in the  manner provided in clause (4) of Article 124 as in  the cases of the remove at of a 511 Judge of the Supreme Court.  Proviso (c) is important and is as follows :               "  the office of a Judge shall be  vacated  by               his  being appointed by the President to be  a               Judge  of  the Supreme Court or by  his  being               transferred by the President to any other High               Court within the territory of India."               Article 222(1) confers power on the  President               to transfer.  Before I make my comments it  is               necessary to read Article 219 which says               "Every  person  appointed to be a Judge  of  a               High  Court shall, before he enters  upon  his               office, make and subscribe before the Governor               of the State, or some person appointed in that               behalf   by  him,  an  oath   or   affirmation               according to the form set out for the  purpose               in the Third Schedule."               Similarly,  in  the case of  a  Supreme  Court               Judge  it has been provided in clause  (6)  of               Article 124 :               "Every person appointed to be, a Judge of  the               Supreme Court shall, before he enters upon his               office,   make   and  subscribe   before   the               President,  or some person appointed  in  that               behalf   by  him,  an  oath   or   affirmation               according to the form set out for the  purpose               in the Third Schedule." The  important  thing to notice is that if the office  of  a Judge is vacated by his resignation or removal, there is  no

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question of his re-entering the office of a Judge either  of the  Supreme Court or the High Court; but if the  office  is vacated under proviso (c) of Article 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 Judge of the Supreme Court is not a mere act  of transfer as it is an appointment to a higher  Court. Yet  for the continuity of the service, pension,  travelling allowance  etc.  it has been treated as a  transfer  of  the Judge  from  the High Court to the Supreme Court  for  being appointed to the latter Court.  The word "transfer" has been used  in  proviso (c) of Article 217(1) and  Article  222(1) because the 512 transfer  is from one high Court to another as a high  Court Judge and not to any superior Court.  But yet the effect  of the transfer is to make the Judge transferred to vacate  his office  of  a  Judge  of the High Court  from  which  he  is transferred and to appoint him as a Judge of the High  Court of another State.  For the purpose of continuity of service, pension,  travelling  allowance etc., there, is  hardly  any difference  between the case of appointment of a High  Court Judge  to the Supreme Court, and transfer to,  another  High Court. I  may lend further support to the view expressed above,  as rightly pointed out by Mr. Seervai, from the two matters  in the Schedules to the Constitution.  Clause, 1 1 (b) of  Part D of the Second Schedule says               "Actual service" includes--               (ii) joining time on from a High Court to  the               Supreme  Court  or  from  one  High  Court  to               another. It  is plain that the joining time on transfer in  both  the cases will keep the Judge transferred either to the  Supreme Court  or to the High Court, a Judge of the High Court  from which  he  is  transferred until he assumes  charge  of  his office on appointment as a Judge of the Supreme Court or  of another  High Court.  The form of oath or affirmation to  be made by the Judge of High Courts as prescribed in the  Third Schedule clearly indicates that under Article 219 the  Judge takes  the oath on his being ,appointed to be a Judge  of  a particular  High Court and not of any High Court  in  India. To me it appears, and I say at the cost of repetition,  that a transferred Judge cannot become a Judge of the High  Court to which he- is transferred without taking his fresh oath in accordance  with Article 219 and in the form  prescribed  in the  Third Schedule.  It was appointed out by  the  Attorney

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General   that  if  it  was  so  then  the  requirement   of consultation  with  the Governor of d State  and  the  Chief Justice of the High Court to which a Judge is transferred in accordance with clause (1) of Article 217 was also necessary but  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.............. The  appointment,  therefore, is to the post of  a  District Judge in a particular State and    not   for   holding   the office of a District Judge in a particular District.   Similarly, there are other AR India Services, such as in the Income  Tax Department,  in  the Income Tax Appellate Tribunal,  in  the Customs  Department etc. where the appointments are  to  the All India cadre in a particular service.  In such a  service orders  of  transfers  are made  transferring  a  particular officer  from  one place to another. ,In terms it  does  not require  vacating  his office of the post  in  a  particular place,  and  assumption  of  it  in  another  place  in  any prescribed form or special    manner.         The mere order of transfer brings about both the results.   In the case  of High Courts, however, they being the courts of record  and the   highest  courts  in  the  federal  structure  of   our Constitution  in  their  respective  States,  the  founding- fathers  adopted a different scheme.  Although they  made  a departure in providing for transfer of a Judge from one High Court  to another in Article 222 from the provisions of  the Government  of India Act, in substance, they did not do  so, as they did not prescribe any mode for the transferred Judge acquiring  his office of a Judge of the High Court to  which he is transferred.  The provision apparently conferring this bald power on the President seems to have been made just for the purpose of keeping it so on the Statute Book and not for the  purpose of utilizing it in the manner it was  done  in the year 1976.  In my considered judgment it could not be so utilised.  It may well be that public interest in some cases does  require and necessitate the transfer of a  Judge  from one High Court to another but it is strange to think that  a Judge  could be compelled to vacate his office of the  Judge of  a  High Court to which he was  initially  appointed  and assume  office as a Judge of another High Court without  his consent.  If this view was possible to be taken in the  case of transfer, it was all the more reasonable to do so in  the

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case  of appointment of a High Court Judge to be a Judge  of the  Supreme Court.  Articles dealing with  appointments  of Judges  either to the High Court or to the Supreme Court  do not, in terms, require the consent of the appointee, yet  no body has suggested so far nor could any body do so     with any  semblance  of justification that a Judge  of  the  High Court can be 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/77 514 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  adoption  of the  present               rule  of law; but it is the fear that  if  the               rule were otherwise, numerous actions would be               brought   against  persons  who  were   merely               discharging their duty.   It  must  always  be               borne in mind that it is not intended to protect               malicious and untruthful persons, but that  it               is  intended  to protect persons  acting  bona               fide,  who  under  different.  rule  would  be               liable, not perhaps to verdicts and  judgments               against them, but to the vexation of defending               actions." Lord Pearce has quoted at page 269 a passage from the speech of Lord Earl of Halsbury, L.C., which- runs as follows               "It  is  very obvious that the  public  policy               which  renders  the  protection  of  witnesses               necessary  for the administration  of  justice               must  as a necessary consequence involve  that               which  is  a step towards and is part  of  the               administration    of    justicenamely,     the               preliminary  examination of witnesses to  find               out  what they can prove.  It may be  that  to               some extent it seems to impose a hardship, put               after  all the hardship is not to be  compared               with that which would arise if it were  impos-               sible  to administer justice,  because  people               would be afraid to give their testimony." I am not concerned to examine in the case whether the law in India  in this regard is exactly the same or not but I  felt tempted  to quote those passages to show that there  may  be necessity  and  justification  on  the  ’ground  of   public interest or policy for the transfer of Judges from one  High Court to another, although it may be few and far between  or even  punitive  in  character, but to,  do  so  without  the

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consent of the Judge concerned will bring about  devastating results  and  cause  damage to the tower  of  judiciary  and erosion  in  its independence.  If adequate  safeguards  are provided  for  to examine individual cases on merits  by  an impartial and independent body, the matter may be different. Learned Attorney General argued that to impose the condition of consent in the power of transfer engrafted in Article 222 is  a  denial  of the power itself.  I do  not  accept  this ’submission to be quite correct.  It is tantamount to merely circumscribing  the  power  in a narrow  limit  and  putting restrictions  upon  it.   If  the  scheme  of  the  relevant articles (1)  [1969] 1 A.C., 19 1. 515 of  the Constitution alluded to by me above warrant  such  a view, as it does, in the interest of the independence of the Judiciary, I for one. would cast 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 wolud 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 (1) 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  and               invalid." I  am conscious of the fact that I am not dealing  with  the vires,  nor  could  I  do  so,  of  the  provisions  of  the Constitution contained in Article  222. But I have extracted the above passage with the purposeof   laying stress on the words "what is done once, if it be allowed, maybe   done again   and   in   a  lesser   crisis   and   less   serious circumstances".if   the Constitution allows it, let  it be done.       We cannot prevent it.But   if   such    a situation  is  possible  to be restrained by  the  rules  of construction  and interpretation of the various articles  of the  Constitution we shall be failing in our duty if  we  do not  do  so in the larger interest of our  country  and  the preservation of the democracy. (1)[1967] 1 A.C. 259. 516