Re: S.P. Gupta vs President Of India And Ors - PIL

330. It would appear that our Constitution has devised a wholesome and effective mechanism for the appointment of Judges which strikes a just balance between the judicial and executive powers so that while the final appointment vests in the highest authority of the executive, the power is subject to a mandatory consultative process which by convention is entitled to great weight by the President. Apart from these safety valves, checks and balances at every stage, where the power of the President is abused or misused or violates any of the constitutional safeguards it is always subject to judicial review. The power of judicial review, which has been conceded by the Constitution to the judiciary is in our opinion the safest possible safeguard not only to ensure independence of judiciary but also to prevent it from the vagaries of the executive. Another advantage of the method adopted by our Constitution is that by vesting the entire power in the President, the following important elements are introduced:
(1) a popular element in the matter of administration of justice,
(2) linking with judicial system the dynamic goals of a progressive society by subjecting the principles of governance to be guided by the Directive Principles of State policy,
(3) in order to make the judiciary an effective and powerful machinery, the Constitution contains a most onerous and complicated system by which Judges can be removed under Article 124(4), which in practice is almost an impossibility.
(4) in order to create and subserve democratic processes the power of appointment of the judiciary in the executive has been vested so that the head of the executive which functions through the Council of Ministers, which is a purely elected body, is made accountable to the people.
331. If absolute powers were to be vested in the judiciary alone for all its spheres of activities (appointment, retirement, removal, etc.) then the element of absolutism may have crept in, resulting in irreparable harm to the great judicial institution. Another reason why the power of appointment in the judiciary was not vested absolutely was to avoid judicial interference in the day-to-day working of the legislative or parliamentary institutions.
332. Dr. Singhvi submitted that independence of judiciary comprises two fundamental and indispensable elements, viz., (1) independence of judiciary as an organ and as one of the three functionaries of the State, and (2) independence of the individual Judge.
333. There can be no quarrel that this proposition is absolutely correct. Our Constitution fully safeguards the independence of Judges as also of the judiciary by a three-fold method--
(1) by guaranteeing complete safety of tenure to Judges except removal incases of incapacity or misbehaviour which is not only a very complex and complicated procedure but a difficult and onerous one.
(2) by giving absolute independence to the Judges to decide the cases according to their judicial conscience without being influenced by any other consideration and without any interference from the executive. Article 50 clearly provides that the State shall take steps to separate the judiciary from the executive in the public services of the State. This important Directive Principle enshrined in Article 50 has been, carried out by the CrPC, 1973 which seeks to achieve complete separation of judiciary from the executive.
(3) so far as the subordinate judiciary (is concerned the provisions of Arts, 233-236 vest full and complete control over them in the High Court. Only at the initial stage of the appointment of munsiffs or the District Judges, the Governor is the appointing authority and he is to act in consultation with the High Court but in all other matters like posting, promotion, etc., as interpreted by this Court in Samsher Singh's case , the High Court exercises
absolute and unstinted control over the subordinate judiciary. Promotion, holding of disciplinary inquiry, demotion, suspension of Sub Judges lie with the High Court and the Governor has nothing to do with the same. Hinting on the nature of the separation of powers brought about by our Constitution, this Court in Chandra Mohan v. State of U.P. made the following observations (at
p. 1993):
The Indian Constitution, though it does not accept the strict doctrine of separation of powers, provides for an independent judiciary in the States; it constitutes a High Court for each State, prescribes the institutional conditions of service of the Judges thereof, confers extensive jurisdiction on it to issue writs to keep all tribunals, including inappropriate cases the Governments, within bounds and gives to it the power of superintendence over all courts and tribunals in the territory over which it has jurisdiction.
334. This Court has in several cases held that the condition of consultation which the Governor has to exercise implies that he would have to respect the recommendations of the High Court and cannot turn it down without cogent reasons and even if he does so, it is manifest that his order is always subject to judicial review on the ground of mala fide or exceeding his jurisdiction.
335. These are sufficient safeguards to ensure the independence of judiciary. The argument of Dr. Singhvi goes a step further so as to import the American concept of absolute independence in our Constitution which, however, is not permissible because as indicated above the provisions relating to judiciary of our Constitution and American Constitution are essentially different.
336. Dr. Singhvi then advanced the same argument which was put forward by Mr. Seervai that a transfer without consent would be punitive both in concept and consequences and would promote a relationship of master and servant which is Inapplicable to the case of Judges and the Chief Justices, We are, however, unable to accept this extreme argument because for the reasons that we have already given a transfer in public interest is an extraordinary provision which does not entail any stain or stigma and is a constitutional step which completely excludes the concept of master-servant relationship.
337. Dr. Singhvi later rightly laid greater stress on the nature and extent of the consultative process in the case of transfer. It was also submitted that even if a Judge is transferred individually, public interest, which leads to his transfer, would also have to be examined by the court: We propose to examine this aspect in greater detail when we deal with Transferred Case No. 24/81. At the moment it is sufficient to state that for the reasons that we have already given a non-consensual transfer cannot be treated as punitive, penal or punishment. Furthermore, we might state here that after a general policy is evolved by the Government for transfer of Judges of the High Court in order to ensure the goal of having 1/3rd Judges in each State from outside the State, such a policy Would be fully justified not only on the ground of public interest but in the larger interest of the country as a whole to promote integration and crush parochialism and provincialism. If this is done, then the question of effective consultation would have to be looked from a different angle. Similarly, a general policy to have CJs from outside in every State would serve the same national interest and there also the effective consultation is to be confined only to the just exceptions that may be made while pursuing this policy.
338. The last question that remains to be determined is as to whether the proposal for transfer of Judges from one High Court to another should emanate from the CJI or from the President. In this connection, the Solicitor-General has produced a memorandum showing the procedure to be adopted in connection with the appointment and transfer of Judges. This memorandum cannot take the place of a statute or a constitutional document. It merely prescribes, the manner in which the proposal can be processed. From a plain language of Article 222 it is manifest that the proposal for transfer can emanate either from the CJI or from the President through the Union Minister for Law and Justice. What is Important is whichever authority, initiates the transfer, the conditions prescribed under Article 222 must be complied with, viz.,
(a) if the proposal emanates from the President, he must ascertain the views of the CJI which are entitled to great weight, and
(b) as Article 222 contemplates consultation with the highest judicial authority in the whole country, it is obvious that the CJI also represents the Judges or the Judges who are sought to be transferred.
339. As a logical result of this concept, it would be necessary for the CJI, on receiving the proposal from the President, to ascertain the views of the Judge concerned and his personal circumstances or objections, if any, and then after applying his mind to them, place the same before the President through the Law Minister. Thereafter, the Matter would have to be processed according to the Rules of Business and advice sent to the President for formal orders.
340. Where, however, the proposal emanates from the CJI himself, then he should collect the necessary facts and examine the reasons given by the Minister concerned for the transfer and before giving his opinion or advice to the Minister he would have to consult the Judge concerned and ascertain his views and give due consideration to them. Thereafter he should also communicate the views expressed by the Judge concerned--whether against or in favour of the proposal--to the President through the Minister concerned so that even if the CJI does not agree with the view of the Judge, the President may be in a position to give his decision finally one way or the other.
341. These are the essential requirements of Article 222 which are briefly contained in the memo, though not strictly in consonance with what we have said above. We might hasten to add here that although the Constitution does not mention either the Chief Minister or the Governor of the State being consulted in the manner of. transfer of a Judge from one High Court to another but the memo provides for this procedure in order to solve some practical difficulties because when a Judge is transferred from one State to another the transferor State must be told, to make necessary arrangements for appointing his successor and similarly at the other end the receiving State would have to make adequate arrangements for the residence and other facilities which are to be given to the Judge concerned. In this process, the Chief Minister or the Governor of the two States may express their opinion but the President is not bound under Article 222 to accept their views. It does not appear to be the intention of the Memo to supplant. two additional authorities for the purpose of consultation, for that would be in direct contravention of Article 222 which merely stipulates consultation with the CJI and impliedly the Judge concerned. Thus, the information given by the Chief Ministers and the Governors of the States is merely for the limited purpose of ascertaining their views and other matters referred to above and is not, therefore, a part of the consultative process enshrined in Article 222 otherwise, if additional authorities are introduced for the purpose of being consulted, then the Memo will be clearly violative of Article 222.
342. Thus, the Memo, while prescribing that the proposal should emanate from the President does not exclude the other alternative, viz., that the proposal should emanate from the CJI. In Transferred Case No. 24/81 it is clear that the proposal of transfer of Justice K.B.N. Singh and others emanated from the CJI and that in our opinion was perfectly Legal, and constitutional and does not offend the provisions of the Memo as suggested by counsel for the petitioners because the Memo, does not and cannot in any way debar the CJI from initiating the proposal if he wants to do so.
343. This, therefore, disposes of all the contentions of the counsel for the parties so far as the various aspects of interpretation of Article 222 is concerned. On a, consideration, therefore, of the facts, circumstances and authorities the position is as follows:
(1) that Article 222 expressly excludes 'consent' and it is not possible to read the word 'consent' into Article 222 and thereby whittle down the power conferred on the President under this Article.: (2) that the transfer of a Judge or a CJ of a High Court under Article 222 must be made in public interest or national interest,
(3) that non-consensual transfer does not amount to punishment or involve any (sic).
(4) that in suitable cases where mala fide is writ large on the face of it, an order of transfer made by the President would be subject to judicial review,
(5) that the transfer of a Judge from one High Court to another does not amount to a first or fresh appointment in any sense of the term,
(6) that a transfer made under Article 222 after complying with the conditions and circumstances mentioned above does not mar or erode the independence of judiciary.
344. For the reasons given above, the contentions of Mr. Seervai, Dr. Singhvi and others fail and are overruled.
Point No. 3 - Policy of General Transfers'
345. We now come to the question of evolving a general policy of transfers (for short, to be referred to as the 'Policy') of Judges of Chief Justice from the home State to other States so that each State or a majority of them has a GJ from outside. Policy has two important limbs--(1) transfer of CJ or Judges from one High Court to another, and (2) recruitment of one-third judges in each High Court from outside the State in which the High Court is situate. The earliest roots and the foundation for evolving the aforesaid policy are to be found even when Article 222 was in the process of its birth. The most prophetic and pregnant observations of Dr. Ambedkar give a clear clue to the desire expressed and the goal sought to be achieved by introducing Article
222. these lines from his speech may be extracted thus:
Secondly, it might be desirable toimport a new Chief Justice to a High Court because it might be desirable to have a man who is unaffected by local politics and local jealousies. We thought therefore that the power to transfer should be placed in the hands of the Central Government.
(Emphasis ours)
(p. 580, Constituent Assembly Debates Vol. 11 (1949).)
346. These observations have a historical significance having been made by one of the greatest jurists, constitutionalist and one of the eminent Founding Fathers of our Constitution and perhaps the highest tribute that .we can pay to the dedicated service of Dr. Ambedkar is to evolve a policy and thus fulfil the pious wish and the last desire of the great jurist