Reddy Vs. Government of India  INSC 92 (7 February 1994)
Jagdish Saran (J) Verma, Jagdish Saran (J) Kuldip Singh (J) Bharucha S.P. (J)
1994 AIR 1207 1994 SCR (1) 662 1994 SCC (2) 303 JT 1994 (1) 401 1994 SCALE
Judgment of the Court was delivered by VERMA, J.- These matters are a sequel to
the decision by a nine-Judge Bench in Supreme Court Advocates-on-Record Assn.
v. Union of India' (hereinafter called the "Judges' Case- IT'), and
relate to the question of transfer of Judges of the High Courts under Article
222 of the Constitution of India.
Civil Appeal No. 140 of 1994 by special leave is against the judgment of the
Andhra Pradesh High Court dismissing a writ petition filed by the appellant, K.
Ashok Reddy. In substance, the relief claimed in the writ petition was a
declaration that Judges of the High Courts are not liable to be transferred
from one to another High Court. It was contended that the transfers were likely
to be influenced by extraneous considerations leading to arbitrariness
resulting in erosion of the independence of judiciary. Another contention was
that the decision by the nine-Judge Bench in the Judges' Case-III excludes the
power of judicial review and is, therefore, in conflict with the decision of a
larger Bench in Kesavananda Bharati v. State of 1 (1993) 4 SCC 441 307 Kerala2.
The Andhra Pradesh High Court rejected these contentions taking the view that
such misapprehensions result from a misreading of the decision of the
nine-Judge Bench in the Judges' Case-III. Civil Appeal No. 140 of 1994 has been
filed by special leave against that judgment.
When the aforesaid civil appeal came up for hearing, it was reported that a
writ petition raising similar questions had been filed in the Allahabad High
Court and, therefore, it was considered appropriate to withdraw that writ
petition from the Allahabad High Court and to bear and decide the same along
with the said civil appeal. Accordingly, that writ petition withdrawn from the
Allahabad High Court is Transferred Case No. 1 of 1994 and is also decided
along with the civil appeal. The reliefs claimed in Transferred Case No. 1 of
1994 relate essentially to Judges of the Allahabad High Court and their
Notice was issued to the Central Government as well as the Attorney General of
India in both these matters.
have heard the appellant, K. Ashok Reddy, a practising Advocate from Andhra
Pradesh. The petitioner, Harikesh Singh in Transferred Case No. 1 of 1994 is a practising
Advocate from Allahabad. In spite of sufficient prior
notice of the date of hearing, Harikesh Singh chose to remain absent and took
no steps for appearance on his behalf. We have, therefore, examined his case
with the assistance of the learned counsel appearing in these matters. We also
heard the learned Attorney General and Shri A.K. Ganguli on behalf of the
Central Government and Ms Indira Jaising who appeared on behalf of the
Sub-Committee on Judicial Accountability.
appellant, K. Ashok Reddy submitted that Article 222 of the Constitution of
India is in substance a dead letter since the power thereunder is incapable of
exercise in the absence of guidelines provided in the Constitution itself. He
also submitted that judicial review is a basic feature of the Constitution as
held in Kesavananda Bharati2 by a larger Bench and, therefore, the holding by a
nine- Judge Bench in the Judges' Case-HI excluding judicial review in the
matter of transfers is not good law. Shri Reddy expressed his concern at the
likely arbitrariness in the transfer of High Court Judges emphasising the fact
that his concern was about the proper implementation of that policy and not of
its effect on any individual High Court Judge.
to him, the Judges' Case-III should be clarified to prevent any arbitrariness.
learned Attorney General submitted that the misapprehensions of Shri Reddy are
unfounded since the Judges' Case-III has dealt with these aspects and also
indicated the guidelines to exclude any arbitrariness in the transfer of
Judges. The learned Attorney General also submitted that the Judges' Case-HI
does not conflict with the decision in Kesavananda Bharati2 inasmuch as it does
not exclude judicial review but merely emphasises the limited area thereof in
view of the nature of that exercise, the discretion being vested in the highest
constitutional functionaries. Shri 2 (1973) 4 SCC 225 : 1973 Supp SCR 1 308 Ganguli
on behalf of the Central Government made the same submission with reference to
portions of the decision in the Judges' Case-III to indicate that these matters
are covered by that decision. Submissions of Ms Indira Jaising were
substantially to the same effect with the addition that some more guidelines
for effectuating the transfer policy could be indicated herein to ensure
uniformity in its working.
points raised in the transferred case from Allahabad are also covered by these
submissions and do not require separate consideration.
Having given our anxious consideration to the matter, we are satisfied that the
points raised in the civil appeal as well as the transferred case are
adequately covered by the decision in the Judges' Case-III. It would be
appropriate to advert particularly to some portions of that decision which are
material for the present purpose before dealing with the submissions made.
material portions of the majority opinion in Supreme Court Advocates-on-Record
Assn. v. Union of India' are as under: (SCC pp. 699701; 706-08) "The rule
of law envisages the area of discretion to be the minimum, requiring only the
application of known principles or guidelines to ensure non-arbitrariness, but
to that limited extent, discretion is a pragmatic need. Conferring discretion
upon high functionaries and, whenever feasible, introducing the element of
plurality by requiring a collective decision, are further checks against
arbitrariness. This is how idealism and pragmatism are reconciled and
integrated, to make the system workable in a satisfactory manner. ...
norms developed in actual practice, which have crystallized into conventions in
this behalf, as visualised in the speech of the President of the Constituent
Assembly, are mentioned later.
468 and 469) Transfers Every power vested in a public authority is to subserve
a public purpose, and must invariably be exercised to promote public interest.
This guideline is inherent in every such provision, and so also in Article 222.
The provision requiring exercise of this power by the President only after
consultation with the Chief Justice of India, and the absence of the
requirement of consultation with any other functionary, is clearly indicative
of the determinative nature, not mere primacy, of the Chief Justice of India's
opinion in this matter. The entire gamut in respect of the transfer of Judges
is covered by Union of India v. Sankalchand Himatlal Sheth 3 and S.P. Gupta v.
Union of India4. It was held by majority in both the decisions that there is no
requirement of prior consent of the Judge before his transfer under Article
222. This power 3 (1977) 4 SCC 193 : 1977 SCC (L&S) 435 : (197 8) 1 SCR 423
4 1981 Supp SCC 87 :(1982) 2 SCR 365 309 has been so exercised since then, and
transfer of Chief Justices has been the ordinary rule. It is unnecessary to
repeat the same. (Para 470) The power of transfer can be
exercised only in 'public interest' i.e. for promoting better administration of
justice throughout the country. After adoption of the transfer policy, and with
the clear provision for transfer in Article 222, any transfer in accordance
with the recommendation of the Chief Justice of India cannot be treated as
punitive or an erosion in the independence of judiciary. Such Judges as may be
transferred hereafter will have been, for the most part, initially appointed
after the transfer policy was adopted and judicially upheld by this Court.
There will be no reason for any of them to even think that his transfer is
punitive, when it is made in accordance with the recommendation of the Chief
Justice of India. In his case, transfer was an obvious incident of his tenure.
This applies equally to all Judges appointed after the adoption of the transfer
policy, irrespective of whether they gave an undertaking to go on transfer or
Constituent Assembly Debates indicate that the High Court judges were intended
to constitute an all-India Cadre.
position cannot now be doubted after adoption of the policy of appointing Chief
Justices from outside and the maintenance of an all-India seniority based on
the date of initial appointment, treating all High Courts as equal. If the
transfer of a Judge on appointment as Chief Justice is not punitive, there is
no occasion to treat the transfer of any other Judge as punitive.
is nothing in Article 222 to require the consent of a Judge/Chief Justice for
his first or even a subsequent transfer. Since his consent is not read as a
requirement for the first transfer there is no reason to require his consent
for any subsequent transfer, according to the same provision. The power under
Article 222 is available throughout the tenure of a High Court Judge/Chief
Justice, and it is not exhausted after the first transfer is made.
contrary view in S.P. Gupta4 has no basis in the Constitution. It is reasonable
to assume that the Chief Justice of India will recommend a subsequent transfer
only in public interest, for promoting better administration of justice
throughout the country, or at the request of the concerned Judge. As indicated,
at least now, after the lapse of more than a decade since the decision in S.P.
Gupta4 there is no reason to treat any transfer as punitive; and therefore, the
observation in S.P. Gupta4 that a punitive transfer is impermissible has no
application any more. As indicated by us later, a transfer made in accordance
with the recommendation of the Chief Justice of India, is not justiciable.
of public interest by proper functioning of the High Courts and, for that
reason, the transfer of any Judge/Chief Justice from one High Court to another
must be the lodestar for the performance of this duty enjoined on the Chief
Justice of India, as the head of the Indian Judiciary. Suitable norms,
including- those indicated hereafter, must be 310 followed by the Chief Justice
of India, for his guidance, while dealing with individual cases. (Paras 472 to
475) NORMS The absence of specific Guidelines in the enacted provisions appears
to be deliberate, since the power is vested in high constitutional
functionaries and it was expected of them to develop requisite norms by
convention in actual working as envisaged in the concluding speech of the
President of the Constituent Assembly. The hereinafter mentioned norms emerging
from the actual practice and crystallized into conventions not exhaustive are
expected to be observed by the functionaries to regulate the exercise of their
discretionary power in the matters of appointments and transfers. (Para 477) Transfers (1) In the formation of his opinion,
the Chief Justice of India, in the case of transfer of a Judge other than the
Chief Justice, is expected to take into account the views of the Chief Justice
of the High Court from which the Judge is to be transferred, any Judge of the
Supreme Court whose opinion may be of significance in that case, as well as the
views of at least one other senior Chief Justice of a High Court, or any other
person whose views are considered relevant by the Chief Justice of India. The
personal factors relating to the Judge concerned, and his response to the
proposal, including his preference of places of transfer, should be taken into
account by the Chief Justice of India before forming his final opinion
objectively, on the available material, in the public interest for better
administration of justice.
may be desirable to transfer in advance the senior most Judge due for
appointment as Chief Justice to the High Court where he is likely to be
appointed Chief Justice, to enable him to take over as Chief Justice as soon as
the vacancy arises and, in the meantime, acquaint himself with the new High
Court. This would ensure a smooth transition without any gap in filling the
office of Chief Justice. In transfer of puisne Judges, parity in proportion of
transferred Judges must be maintained between the High Courts, as far as
The recommendations in the Report of tile Arrears Committee (1989-90) mention
certain factors to be kept in view while making transfers to avoid any hardship
to the transferred Judges. These must be taken into account. (Para 479)
and Transfers The primacy of the judiciary in the matter of appointments and
its determinative nature in transfers introduces the judicial element in the
311 process, and is itself a sufficient justification for the absence of the
need for further judicial review of those decisions, which is ordinarily needed
as a check against possible executive excess or arbitrariness. Plurality of
Judges in the formation of the opinion of the Chief Justice of India, as
indicated, is another inbuilt check against the likelihood of arbitrariness or
bias, even subconsciously, of any individual. The judicial element being
predominant in the case of appointments, and decisive in transfers, as
indicated, the need for further judicial review, as in other executive actions,
is eliminated. The reduction of the area of discretion to the minimum, the
element of plurality of Judges in formation of the opinion of the Chief Justice
of India, effective consultation in writing, and prevailing norms to regulate
the area of discretion are sufficient checks against arbitrariness.
guidelines in the form of norms are not to be construed as conferring any justiciable
right in the transferred Judge. Apart from the constitutional requirement of a
transfer being made only on the recommendation of the Chief Justice of India,
the issue of transfer is not justiciable on any other ground, including the
reasons for the transfer or their sufficiency. The opinion of the Chief Justice
of India formed in the manner indicated is sufficient safeguard and protection
against any arbitrariness or bias, as well as any erosion of the independence
of the judiciary.
is also in accord with the public interest of excluding these appointments and
transfers from litigative debate, to avoid any erosion in the credibility of
the decisions, and to ensure a free and frank expression of honest opinion by
all the constitutional functionaries, which is essential for effective
consultation and for taking the right decision.
growing tendency of needless intrusion by strangers and busybodies in the
functioning of the judiciary under the garb of public interest litigation, in
spite of the caution in S.P. Gupta 4 while expanding the concept of locus standi,
was adverted to recently by a Constitution Bench in Krishna Swami v. Union of
India-. It is, therefore, necessary to spell out clearly the limited scope of
judicial review in such matters, to avoid similar situations in future. Except
on the ground of want of consultation with the named constitutional
functionaries or lack of any condition of eligibility in the case of an
appointment, or of a transfer being made without the recommendation of the
Chief Justice of India, these matters are not justiciable on any other ground,
including that of bias, which in any case is excluded by the element of
plurality in the process of decision-making." (Paras 480 to 482)
J. in his separate concurring opinion has expressed his entire agreement on
this point, as under: (SCC p. 585a-c) 5 (1992) 4 SCC 605 312 "Transfer of
Judges With regard to the interpretation of Article 222 regarding transfer of
Judges from one High Court to another, 1 entirely agree with the reasoning and
conclusion arrived at by learned brother, J.S. Verma, J. (Para 252) Conclusions
Though I have given my reasons separately, as indicated even at the threshold
of the judgment, I am in agreement with the conclusions of my learned brother,
J.S. Verma, J. regarding the process of appointment of Judges, initiation of
the proposal for appointments and the right of primacy to the opinion of Chief
Justice of India in the matter of appointment of Judges, transfer of High Court
Judges/Chief Justices of the High Courts, fixation of Judge-strength, the
summary of which is given under Point Nos. (1) to (8), (10), (12) and
(13)." (Para 253)
One of us (Kuldip Singh, J.) while concurring with the majority, stated thus:
(SCC p. 675 and 677) "So far- as the interpretation of Article 222 of the
Constitution regarding transfer of a Judge from one High Court to another, we
entirely agree with the reasoning and the conclusions reached by Verma, J. We
reiterate that the power vested under Article 222 can only be exercised in
'public interest'. It is only the Chief Justice of India who can examine the
circumstances in a given case and reach a conclusion as to whether it is in
public interest to transfer or re-transfer a Judge from one court to another.
of 'public interest' when read in Article 222 makes it obligatory that the
views of the Chief Justice of India are accepted by the executive. We also
agree with Verma, J.
transfer made in public interest on the recommendation of the Chief Justice of
India is not justiciable. (Para 407) On the basis of the reasoning and
discussion on various issues, we conclude and hold as under:
Chief Justice/Judge may be transferred from one High Court to another Article
222 in public interest. A transferred Chief Justice/Judge can be transferred
again and the power is not exhausted after the first transfer. The consent of
the Chief Justice/Judge concerned is not required under the Constitution. S.P.
Gupta case4 stands overruled to the extent.
proposal for transfer of a Chief Justice/Judge under Article 222 has to be
initiated by the Chief Justice of India and the ultimate recommendation in that
respect is binding on the executive.
The transfer of a Chief Justice/Judge is not Justiciable in the court of law
except on the ground that the transfer was made without the recommendation of
the Chief Justice of India. (Para 41 1) 313
J. in his separate opinion, on this point, has taken substantially the same
view by saying that a High Court Judge can be transferred in public interest
and such a transfer is not punitive. Punchhi, J. in his opinion has generally
agreed with Ahmadi, J. In short, there is no disagreement on this aspect in the
opinion of any learned Judge in the Judges' Case-II1.
is, therefore, clear that exercise of power of transfer under Article 222 of
the Constitution is to subserve a public purpose and to promote 'public
interest' for better administration of justice throughout the country, which is
the inherent guideline implicit in Article 222 as held in the Judges' Case-H1.
The expression 'public interest' has a legal connotation well known and
properly understood and so also the requirement of promoting better
administration of justice throughout the country, which is the guideline held
to be implicit in Article 222 of the Constitution.
The expression 'public interest' in the context of the Premature Retirement
Rules was held to be an expression having the well-settled meaning that it
refers to the interests of public administration. (See Gian Singh Mann v. High
Court of Punjab and Haryana6 and Union of India v. Col.
our opinion, the guideline of 'public interest', i.e., "for promoting
better administration of justice throughout the country" is sufficient
guideline for proper exercise of the power and to ensure exclusion of the
possibility of any arbitrariness in the exercise of power of transfer under
Article 222 in accordance with the recommendation of the Chief Justice of India
as indicated in the Judges' Case-II1'; and its application to individual cases
is a question of fact in each case. Laying down exhaustive guidelines in this
behalf is neither expedient nor pragmatic. It has also been indicated in the
Judges' Case-11' that "suitable norms, including those indicated .... must
be followed by the Chief Justice of India, for his guidance, while dealing with
individual cases". The application of the broad guidelines to individual
cases according to norms evolved in practice has to be left to the discretion
of the Chief Justice of India which is to be exercised in consultation with his
colleagues whose opinion is required to be taken for this purpose. The factors
which may be relevant for promoting better administration of justice throughout
the country to subserve the public interest contemplated by such transfers
would depend on the myriad situations which might have to be met.
such relevant factors would be shifting of a Judge from one High Court to
another for improving the functioning of either High Court; avoiding
embarrassment to the Judge on account of close relations practising ordinarily
in the same High Court or any court subordinate thereto; the likelihood of
embarrassment to the Judge on account of any litigation or property interest in
the same State; if the Judge, for any reason, has become 6 (1980) 4 SCC 266:
1980 SCC (L&S) 527 : (198 1) 1 SCR 507 7 (1970) 2 SCC 458:(1971) 1 SCR 791
314 controversial so that his continuance in the same High Court is not
conducive to his interest or to the image of the Judiciary or to the proper
functioning of that High Court, or any other similar situation. The transfer of
any Judge with his consent can, of course, be always made. The factors
indicated are not an exhaustive list of all the relevant factors in this behalf
and are merely illustrative.
The Chief Justice of India, as the paterfamilias of the
judiciary, can be safely relied upon in his wisdom, to ensure that transfer of
a judge is so effected as to cause him the minimum inconvenience and to take
into account such personal factors as might be involved. Indication to this
effect is also to be found in the Judges' Case-III.
The myth of non-transferability of High Court Judges, notwithstanding Article
222, was blown in Union of India v. Sankalchand Himatlal Sheth3. Thereafter,
the constitutional validity of the transfer policy was judicially upheld in
S.P. Gupta v. Union of India4. The conferment of that power by Article 222 and
the proper manner of its exercise to exclude any arbitrariness has then been
indicated in the Judges' Case-III wherein the trust reposed by the President of
the Constituent Assembly in the constitutional functionaries was recalled and
adverted to. Dr Rajendra Prasad had said:
things which cannot be written in the Constitution are done by conventions. Let
me hope that we shall show those capacities and develop those
is for this reason, that detailed guidelines are not to be found in the
Constitution and they have to emerge in the working of Article 222. It has been
made known that after the Judges' Case-Hi the Chief Justice of India constituted
a Peer Committee comprising of the two senior most puisne Judges of the Supreme
Court and two Chief Justices of High Courts to make suggestions for transfers
and the Chief Justice of India is to make his recommendations on that basis and
in accordance with the broad guidelines indicated in the Judges' Case-Ill. In
our view, this is sufficient safeguard against any likely arbitrariness or
bias. There is no room left for any apprehension of arbitrariness or bias in
the transfer of any Judge/Chief Justice of a High Court. It is time that the
men at the apex level of the Indian Judiciary are permitted to manage the
affairs of the judicial family and look after its welfare and interest instead
of permitting repeated intrusions by some in the guise of 'public interest'
thereby rendering the Judges vulnerable .to avoidable controversy involving
them. We are constrained to observe that the Allahabad case before us is of that kind. We have no doubt that the
Chief Justice of India acting on the institutional advice available to him is
the surest and safest bet for preservation of the independence of judiciary.
Judicial review of transfers of members of transferable services Is exceptional
and is made only in extraordinary cases on limited grounds. This is so even in
the case of transfer of subordinate Judges by the High Court, independence of
subordinate Judges being equally important.
being so, 315 the cry for a larger area of justiciability in the case of
transfer of High Court Judges is incongruous when the power is to be exercised
by the highest constitutional functionaries of the Indian Judiciary, with the
care and circumspection indicated in the Judges' Case-III and herein.
The Judges' Case-III does not exclude judicial review but merely limits the
area of justiciability to the constitutional requirement of recommendation of
the Chief Justice of India for exercise of the power under Article 222 by the
President of India. The power under Article 222 of the Constitution is to be
exercised by the highest constitutional functionaries in the country in the
manner indicated which provides several inbuilt checks against the likelihood
of arbitrariness or bias. In S.P. Gupta 4 even though the concept of locus standi
for challenging the transfer policy was liberalised and the standing to sue in
public interest litigation has been considerably widened, yet the validity of
individual transfers was examined only at the instance of the transferred Judge
and not at the instance of anyone else. The need for restricting the standing
to sue in such a matter to the affected Judge alone has been reiterated in the
Judges' Case-III. It is, therefore, made clear that the transfer of a High
Court Judge is justiciable only on the ground indicated in the Judges' Case-III
and only at the instance of the transferred Judge himself and not anyone else.
This emphasis is necessary to prevent any transferred Judge being exposed to
any litigation involving him except when he chooses to resort to it himself in
the available limited area of justiciability.
useful passage from Craig's Administrative Law (Second Edn., p. 29 1) is as
traditional position was that the courts would control the existence and extent
of prerogative power, but not the manner of exercise thereof. ... The
traditional position has however now been modified by the decision in the GCHQ
case. Their Lordships emphasised that the review ability of discretionary power
should be dependent upon the subject-matter thereof, and not whether its source
was statute or the prerogative. Certain exercises of prerogative power would,
because of their subject-matter, be less justiciable, with Lord Roskill
compiling the broadest list of such forbidden territory.......
Council of Civil Service Unions v. Minister for the Civil Service8 (GCHQ case),
Lord Roskill stated thus: (page 418 : All ER p. 956) "But I do not think
that that right of challenge can be unqualified. It must, I think, depend upon
the subject-matter of the prerogative power which is exercised. Many examples
were given during the argument of prerogative powers which as at present
advised I do not think could properly be made the subject of judicial review.
Prerogative powers such as those relating to the making of treaties, the defence
of the realm, the prerogative of mercy, the grant of honours, the dissolution
of Parliament and the appointment of ministers as well as others are not, I
think, 8 (1985) AC 374 : (1984) 3 All ER 935 316 susceptible to judicial review
because their nature and subject-matter are such as not to be amenable to the
The same indication of judicial self- restraint in such matters is to be found
in De Smith's Judicial Review of Administrative Action, thus:
self-restraint was still more marked in cases where attempts were made to
impugn the exercise of discretionary powers by alleging abuse of the discretion
itself rather than alleging non-existence of the state of affairs on which the
validity of its exercise was predicated. Quite properly, the courts were slow
to read implied limitations into grants of wide discretionary powers which
might have to be exercised on the basis of broad considerations of national
policy." (page 32)
is for this reason that the reduced area of justiciability has been indicated
in the Judges' Case-III.
it was said in the Judges' Case-HI that the ground of bias also is not
available for challenging a transfer, it was to emphasise that the decision
made by the collective exercise of several Judges at the apex level or
objective criterion on which the recommendation of the Chief Justice of India
is based, is an in built check against arbitrariness and bias indicating
absence of need for judicial review on those grounds. This is how the area of justiciability
is reduced in the sphere of judicial review of transfer of Judges.
Indira Jaising also submitted that any such litigation should lie only in the
Supreme Court of India and not in any other court to prevent embarrassment to
High Court Judges. We consider it sufficient to observe that the limited area
of justiciability in this sphere being clearly declared in the Judges' Case-III
and also herein while making it clear that no one other than the transferred
Judge himself can question the validity of a transfer, it is unnecessary to
provide any further safeguard. We have no doubt that if any other court in the
country is called upon to decide such a matter, it would promptly consider the
option of requesting this Court to withdraw the case to this Court for decision
to avoid any embarrassment.
For the aforesaid reasons, we must hold that there is no merit in any of the
points raised in these matters.
both matters are dismissed.