Bench: N.L Untwalia, P.N. Bhagwati, S.Murtaza Fazal Ali, V.R Krishna Iyer, Y.V Chandrachud
Key Point
It is a landmark Supreme Court judgement that interpreted the scope of the President’s power to transfer judges between High Courts under Article 222 of the Constitution. The case involved complex questions regarding the independence of the judiciary and the balance of power between the executive and the courts.
Introduction
In Union of India v. Sankalchand Sheth, the constitutionality of a notification was ascertained by which Justice Sankalchand Sheth of the Gujrat High Court was transferred to the High Court of Andhra Pradesh. Justice Sankalchand accepted the transfer order and took over the charges as a judge of the Andhra Pradesh High Court, but before doing that, he filed a Writ Petition under Article 226 of the Constitution of India before the Gujarat High Court. In this writ petition, the constitutionality of several Articles and precedents had been challenged before the High Court.
Facts of the Case
The government of India issued a notification through its Ministry of Law & Justice, and Corporate Affairs, Department of Justice, which indicated that with powers conferred by clause (1) of Article 222 of the Constitution of India, Shri Justice Sankalchand Himatlal Sheth, Judge of the High Court of Gujarat, to be transferred to the High Court of Andhra Pradesh with effect from the date he assumed charge of his office.
Article 222 of the Indian Constitution empowers the President of India to transfer judges between high courts. This provision was included to facilitate the transfer of judges where necessary for the proper administration of justice.
Legal issues raised
Whether Article 222(1) of the Constitution implies the “consent” of a judge as a prerequisite before he can be transferred from one High Court to another by the President of India?
Whether the transfer was against public policy?
What does “consultation” mean under Article 222(1)?
Judgement
The Supreme Court by a majority of 3:2 (P.N Bhagwati and Untawalia, JJ dissenting) held –
A judge of a High Court could be transferred under Article 222 (1) without his consent. If consent was imported in Art. 222 so as to make condition precedent to transfer of a judge from one High Court to another then a judge by withholding consent could render the power contained in the Article wholly ineffective and nugatory.
The Constitution confers the power to transfer a High Court Judge in the public interest and not to provide the Executive with a weapon to punish a Judge who does not touch its line, or who for some reason, has fallen from its grace. The extraordinary power conferred on the President by this Article 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. Once it is accepted that a High Court Judge can be transferred on the grounds of public interest only, the apprehension that the Executive may use the power of transfer for its ulterior ends and thereby interfere with the independence of the judiciary loses its force.
The Article casts an absolute obligation on the President to consult with the Chief Justice of India before any such transfer. That is the condition precedent to the actual transfer of Judge. The consultation must be an effective one. It means that while consulting the Chief Justice of India, the President must make the relevant data available to him based on which he can offer the benefits of his considered option and arrive at a proper conclusion. Consultation within the meaning of Article 222(1) , therefore means full and effective, not formal or unproductive consultation.
P.N Bhagwati and Untawalia, JJ, however, dissented from the majority and held that judge of High Court can not be transferred without his consent.
Conclusion
Over time, norms evolved to make the transfer process more consultative and transparent. The Chief Justice of India’s opinion became increasingly important in evaluating transfer proposals. By the 1990s, a collegium system emerged where panels of senior judges recommended transfers rather than the executive acting unilaterally. This evolution from a more arbitrary practice to a consultative system was shaped profoundly by the Sankalchand case’s emphasis on judicial independence, further reinforced by the S.P. Gupta v. Union of India 1981 case, which highlighted the need for transparency in judicial appointments and transfers. Today, while the President formally orders transfers, they are done through established procedures valuing judicial consent.
References
https://indiankanoon.org/doc/1302865/
By Ananya Seth , Amity University Haryana
(Intern at Nyaya Nishtha )