Transfer and Removal of Judges

Article 218 carries both across: clauses (4) and (5) of article 124 "shall apply in relation to a High Court as they apply in relation to the Supreme Court with the substitution of references to the High Court for references to the Supreme Court". Article 217(1)(b) says the same from the other end. Resignation is separate: under articles 124(2)(a) and 217(1)(a) a judge may resign "by writing under his hand addressed to the President".

Transfer: is consent required?

Facts. Union of India v. Sankalchand Himatlal Sheth, AIR 1977 SC 2328, (1977) 4 SCC 193, (1978) 1 SCR 423, decided 19 September 1977 by a Bench of five. By a notification of 27 May 1976, during the Emergency, the President transferred Justice S.H. Sheth from the Gujarat High Court to the Andhra Pradesh High Court, to take charge within four weeks. He obeyed, then challenged the notification on four grounds: that consent is implied in article 222(1); promissory estoppel from a Law Minister's assurance in the Lok Sabha; that the transfer was not in public interest; and that consultation with the Chief Justice of India had not been effective. The Gujarat High Court set the transfer aside on the last ground, and the Union appealed.

Held. Consent is not required. The Court declined to read "with his consent" into article 222(1): "In adding such words, we will be confusing our own policy views with the command of the Constitution." But the power is confined. A judge "cannot be transferred as a matter of punishment, as for example, for the views which he bona fide holds", and a transfer may be made in public interest only. The safeguard is the consultation: "Consultation within the meaning of Article 222(1), therefore, means full and effective, not formal or unproductive, consultation." Deliberation is "the quintessence of consultation", so each case must be judged on its own facts, and "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." What is required is consultation, "not his concurrence".

Why it matters. It is the source of "full and effective consultation", the phrase on which [The Appointment of Judges] turns. It also ended unusually: the Government said it saw no "justification for transferring Justice Sheth from Gujarat High Court" and proposed to transfer him back, and the petition was withdrawn on that statement.

Transfer, tenure and the executive

Facts. S.P. Gupta v. President of India, AIR 1982 SC 149, 1981 Supp (1) SCC 87, (1982) 2 SCR 365, decided 30 December 1981 by a Bench of seven. Advocates challenged the Law Minister's circular of 18 March 1981 asking Chief Ministers to obtain from Additional Judges "their consent to be appointed as permanent Judges in any other High Court in the country", and the appointment of three Delhi Additional Judges for three months only, said to be "subversive of the independence of the judiciary".

Held. The petitions failed. The circular "is a document without any legal force and does not by itself of its own force, create or alter any legal relationship", and the discontinuance of an Additional Judge had followed "full and effective consultation". The Court applied Sankalchand's meaning of consultation to articles 124(2) and 217(1), while holding that consultation is not concurrence: "consultation is different from consentaneity. They may discuss but may disagree; they may confer but may not concur."

Why it matters. It shows the pressure point. Nobody was transferred and nobody removed, yet a judge whose permanence depended on the Government's goodwill was asked in advance to agree to leave his State. The case was lost, but its facts are the argument for the primacy the Second Judges case gave the Chief Justice, whose conclusions on transfer are now the law: his opinion "has not mere primacy, but is determinative in the matter of transfers", consent is not required for any transfer, and a transfer on his recommendation "is not to be deemed to be punitive, and such transfer is not justiciable on any ground".

Removal: how an address is actually made

Article 124(4) states the requirement. The Judges (Inquiry) Act 1968, made under article 124(5), supplies the machinery, and the steps are examinable.

Step one, the motion. Under section 3(1), notice must be signed by not less than one hundred members of the House of the People or not less than fifty of the Council of States. The Speaker or Chairman may "either admit the motion or refuse to admit the same". Refusal ends it.

Step two, the Committee. If admitted, the motion is kept pending and a Committee of three is constituted under section 3(2): one from among the Chief Justice and other judges of the Supreme Court, one from among the Chief Justices of the High Courts, and one "a person who is, in the opinion of the Speaker or, as the case may be, the Chairman, a distinguished jurist".

Step three, charges and defence. Section 3(3) requires "definite charges", communicated to the judge with the grounds; section 3(4) gives him "a reasonable opportunity of presenting a written statement of defence"; section 4(1) adds cross-examination, evidence and a hearing; section 5 gives the Committee a civil court's powers under the Code of Civil Procedure 1908.

Step four, the report. Section 4(2): findings on each charge separately. If the judge is found not guilty, section 6(1) provides that "no further steps shall be taken in either House".

Step five, the vote. If guilt is found, section 6(2) puts the motion and report before the House, and if the motion is adopted by each House in accordance with article 124(4), section 6(3) provides that "the misbehaviour or incapacity of the Judge shall be deemed to have been proved" and the address goes to the President "in the same session in which the motion has been adopted".

That is the design, and it is deliberately hard to complete. In Ravichandran Iyer, 1995 SCC (5) 457, decided 5 September 1995, the Court said the "impeachment proceedings against Justice V. Ramaswami and its fall-out do indicate that the process of impeachment is cumbersome and the result uncertain".

Prosecution is not removal

Facts. K. Veeraswami v. Union of India, 1991 SCR (3) 189, 1991 SCC (3) 655, decided 25 July 1991. A complaint against the appellant, a former Chief Justice of a High Court, led to a case under section 5(2) read with section 5(1)(e) of the Prevention of Corruption Act 1947, registered on 24 February 1976. He retired that April, and a charge-sheet in December 1977 alleged assets disproportionate to his known sources of income. He moved to quash it, saying the Act cannot apply to a judge of a superior court because sanction under section 6 must come from the authority competent to remove him, and that is Parliament and the President under article 124(4).

Held. By the majority of Ray, Shetty, Sharma and Venkatachaliah JJ., Verma J. dissenting: a judge of a High Court or of the Supreme Court is a "public servant" within section 2 of the Act and may be prosecuted after sanction under section 6, the President being the sanctioning authority under section 6(1)(c). The majority then created safeguards: "No criminal case shall be registered under s. 154, Cr. P.C. against a Judge of the High Court, Chief Justice of the High Court or a Judge of the Supreme Court unless the Chief Justice of India is consulted"; if the allegations are against the Chief Justice himself, other judges are consulted; and at the sanction stage "it shall be necessary and appropriate that the question of sanction be guided by and in accordance with the advice of the Chief Justice of India". Verma J. held the Act inapplicable to such constitutional functionaries altogether.

Why it matters. It answers the argument that article 124(4) is a judge's only exposure. Removal concerns holding office; prosecution is the ordinary criminal law, and a judge is not outside it. Notice what the Court built: a safeguard in no statute, putting the Chief Justice in the path of an investigation.

What it does NOT mean

It does not mean a transfer can never be challenged. Sankalchand allows a challenge that it was punitive, not in public interest, or made without full and effective consultation. The Second Judges case narrowed that where the Chief Justice recommends it.

It does not mean "misbehaviour" is whatever Parliament says it is. Article 124(4) requires proved misbehaviour or incapacity, and section 6(1) stops the process dead if the Committee finds none. Proof comes first, the vote second. Nor does removal exhaust what a judge faces: Veeraswami is the answer, subject to the consultation it requires.

A worked example

Justice Rekha Menon of the Karnataka High Court decides a case against the Union. Six weeks later she is transferred to Gauhati. Two months on, a hundred members of the Lok Sabha move for her removal, alleging that she accepted hospitality from a litigant.

Step one, may she challenge the transfer, and on what ground? She may, and consent is irrelevant: Sankalchand refused to read it into article 222(1). Her grounds are that the transfer is punitive and not in public interest, and that consultation was not full and effective. She must meet the Second Judges case, on which a transfer the Chief Justice recommends is not to be deemed punitive.

Step two, what happens to the motion? The Speaker may admit or refuse it under section 3(1). If admitted, a Committee of three is constituted under section 3(2) and definite charges framed under section 3(3). Her protection is in sections 3(4) and 4(1): charges in writing, a written defence, cross-examination, evidence and a hearing. If the Committee finds her not guilty, section 6(1) ends the matter whatever the numbers in the House.

Step three, and if the allegation is criminal? Then Veeraswami governs, not article 124(4). No case may be registered against her under section 154 of the Criminal Procedure Code without consulting the Chief Justice, and sanction comes from the President.

Quick revision

• Article 222(1): the President may transfer a High Court judge "after consultation with the Chief Justice of India". The printed text's reference to the Commission is void.
• Sankalchand Sheth (1977), five judges: no consent needed; transfer only in public interest, never as punishment; consultation "full and effective, not formal or unproductive".
• S.P. Gupta (1981), seven judges: the circular had no legal force; consultation is not concurrence.
• Second Judges: on transfers the Chief Justice's opinion is determinative and such a transfer is not justiciable.
• Article 124(4): removal only by order of the President after an address by each House, special majority, same session, "on the ground of proved misbehaviour or incapacity". Article 218 applies it to High Courts.
• Judges (Inquiry) Act 1968: s.3(1), 100 Lok Sabha or 50 Rajya Sabha signatures, and the Speaker or Chairman may refuse; s.3(2), Committee of three; s.3(3), definite charges; ss.3(4) and 4(1), defence and hearing; s.6(1), a finding of not guilty ends it; s.6(3), adoption by both Houses deems the misbehaviour proved.
• Veeraswami (1991): a judge is a public servant under the Prevention of Corruption Act; sanction from the President; no first information report without consulting the Chief Justice.

Test yourself

1. Is a judge's consent needed for transfer? Give the case and its reasoning.

2. What limits did Sankalchand Sheth place on the power in article 222(1)?

3. Set out the five stages of removal under article 124(4) and the 1968 Act, with sections.

4. Where can a motion for removal stop, and who stops it?

5. Why does article 218 exist, and what would be missing without it?

6. State the holding in Veeraswami and the safeguards attached to it.