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Judges Transfer Case - SP Gupta Vs Union of India

Famous case, S.P.Gupta Vs Union of India[1] 1982, this is popularly known as Judges Transfer
case. The Supreme Court unanimously agreed with the meaning of the term consultation in
Article 212, 22, 124(1)* of the constitution. In the above, Supreme Court Advocates on Record
case, the Supreme Court held that the Chief Justice shall have to consult two other senior most
Judges of the Supreme Court before sending his opinion. In this Judgement, the Supreme Court
laid down certain guidelines.
a) Individual initiation of high constitutional functionaries in the matter of appointment of Judges
reduced to minimum. It gives privacy to the Chief Justice of India but puts a check on him to
consult at least two of his senior most colleagues.

b) Constitutional functionaries must act collectively in Judicial Appointments.

c) Appointment of Chief Justice of India by seniority only.

d) No Judge can be appointment by the Union Government without Consulting the Chief Justice
of India.

The Supreme Court, while upholding the Independence of Judiciary in appointment of Judges of
the Supreme Court and High Court, on the basis of the term consultation under Article 217(1)*
and 222 of the constitution in the formation of the opinion of the Chief Justice of India after
consultation has to be sent to the President. Two senior most Judges of the Apex Court have to
assist the Chief Justice of India to form an opinion. However, the question regarding political
interference in the matter of appointment of Supreme Court and High Court Judges, still exists
and after, the court has been striving to maintain the Independence. But in 93rd Constitutional
Amendment Bill of 2003, it will provide for establishment of National Judicial Commission. The
provisions of the 93rd Amendment are featured as follows.

1) Constitution of the commission to be chaired by the Honourable Chief Justice of India with
two senior most Judges of the Supreme Court, Minister In-charge of law and Justice, Union of
India , and an eminent citizen to be nominated by the President, as its member.

2) Powers of the Commission regarding appointment of the Supreme Court and High Court
Judges, and matters incidental thereto.

3) Powers of the Commission to take action in cases of complaints against Judges and the
matters incidental thereto.

4) Association of the Chief Minister of the concerned state in the matter of appointment of High
Court Judges.

The Legislature has been conferred with powers for the constitution to enact laws at the same
time, the constitution also provides for certain rights to the citizens. The Independence of
Judiciary has been provided by the constitution to maintain of Judiciary has been provided by the
constitution to maintain balance between the legislative-powers and the rights of the citizens.
The legislature must understand that it cannot indirectly interfere with the Independence of the
Judiciary and its functioning, which is against the spirit of the constitution.

The Government of India through the 93rd Amendment Bill proposes to constitute a National
Judicial Commission in view of the allegations of corruption and misuse of official position,
being mode against sitting Judges of different High Courts. The Bill (93rd amendment) provides
to deal with the matters relating to Appointment, Transfer of Judges and inquiries into the
complaints against the Judges and other incidental matters. The Government of India proposes to
establish the National Judicial Commission, so that the Commission comprising eminent persons
without any Executive or Political influences. But the Judiciary is expressing a grouse by saying
that under the pretext of constituting National Judicial Commission, The Executive is trying to
interfere with the Independence of the Judiciary and the so-called nominated persons in the
National Judicial Commission, pliable to the Executive and may Act according to the wishes of
the Executive. But the Independence of the Judiciary as contemplated in the constitution is
without any interference in any manner what so ever. The Independence of Judiciary is a basic
structure of the constitution as held by the Supreme Court in Kesavananda Bharathi Vs State of
Kerala[2].

Visualising the present situation, the Judiciary in India, which is the protector and guarantor of
Fundamental Rights of the citizens, is to be allowed to function independently without any
interference. In this regard, a mute question raises that whether the action of the Executive in
respect of constitution of the courts, appointment of Judges, laying down their conditions of
service including salary, age of retirement etc, whether this amounts to interfering with the

Independence of Judiciary while the Judges are not answerable to any Superior Authority. While
exercising their power of delivering Judgments in the course of administration of Justice ?.
However once an office or a post or an Institution is created or constituted, it must be placed
under the control of some authority; so that the actions of the persons employed can be
supervised or controlled. But, in Indian Constitution, once the courts are constituted and the
Judges are appointed, no external influence over exerted or imposed in the course of deliverance
of Judgements, either from the legislature or from the executive. But on the other hand, it is for
the Judges themselves, who are allured by the influences corruption, malice, bias, favour etc,
because the Judges are also human beings. In India, the Judges are influenced only by their vices
or weaknesses from among themselves and no external inferences ever entered into the citadels
of Independence of Judiciary.

[1] AIR 1982 SC 149


* Article 212 Courts not to inquire into proceedings of the Legislature.
* Article 22 Protection against arrest and detention in certain cases.
* Article 217 Appointment and conditions of the office of a Judge of High Court.
[2] AIR 1973 SC 1461