Holding

Transfers of High Court judges under Article 222 are valid if made in public interest on the recommendation of the Chief Justice of India, and judicial review is limited to cases where such recommendation is absent, with only the transferred judge entitled to challenge.

Summary

K. Ashok Reddy filed a writ petition seeking a declaration that High Court judges could not be transferred under Article 222 of the Constitution, alleging that transfers were arbitrary, biased and eroded judicial independence, and that the Supreme Court's Judges' Case‑II had wrongly excluded judicial review, conflicting with Kesavananda Bharati. The Andhra Pradesh High Court dismissed the petition; the matter was appealed as Civil Appeal No. 140 of 1994 and a similar writ from the Allahabad High Court was transferred for adjudication. The Supreme Court held that the power to transfer judges must be exercised in public interest to promote better administration of justice, that the Judges' Case‑II does not bar judicial review but limits it to transfers made without the Chief Justice of India's recommendation, and that only the transferred judge has locus standi to challenge a transfer. The Court emphasized the adequacy of the peer‑committee mechanism and the CJI’s discretion as safeguards against arbitrariness and bias, and dismissed both the appeal and the transferred case.

Issues considered

The scope of judicial review over transfers of High Court judges under Article 222.
Whether the Judges' Case‑II excluded judicial review, contrary to the basic structure doctrine.
Whether transfers of judges violate judicial independence by being arbitrary or biased.
Who has locus standi to challenge a transfer – only the transferred judge or any person.
The adequacy of guidelines and the peer‑committee as safeguards against arbitrariness.

Legislation cited

Constitution of Indias. Article 136, s. Article 222, s. Article 226, s. Article 32

Subjects

Article 222Judicial transferJudicial independenceJudicial reviewPublic interestLocus standiHigh Court judgesTransfer policyArbitrarinessBias

Judgment

,...I...
A K. ASHOK REDDY ETC.
v.
THE GOVERNMENT OF INDIA AND ORS.

FEBRUARY 7, 1994

B [KULDIP SINGH, J.S. VERMA AND S.P. BHARUCHA, JJ.]

Constitution of India, 1950: Article 222( 1}-Transfer of Judges and
Chief Justice of High Court-Transfer by President in consultation with Chief
>-
Justice of India-Likelihood of bias and arbitrariness-Held: Apprehensions
c unfounded-Transfers necessary for promoting better administration of Justice
throughout the country-ln-built checks in the exercise of power to trans-
fer-Peer committee of two senior Judges of Supreme Court and two Chief
Justices of High Court Constitution of-Sufficient safeguard-£/ements of ar-
bitrariness and bias thus eliminated.

D Articles 32, 136 and 226: Locus standi-Transfe"ed Judge alone can
challenge the trans/er-Judicial Review-Area of justiciability limited-Non-
availablility of Judicial Review on grounds of arbitrariness and bias-Do not
amount to violation of basic feature of the Constitution.

Administrative Law: Judicial Review-Reviewability of discretionary
E power-Transfer of Judges-Collective exercise of highest Con$titutional
functionaries on objective criterion-In-built check in itself against arbitrari-
ness and bias.
~·
The appellant, filed a writ petition before the High Court praying for
F a declaration that Judges of the High Courts were not liable to be trans-
{erred. He contended that the transfers were likely to be influenced by
extraneous considerations leading to arbitrariness resulting in erosion of
the independence of judiciary; that the decision by the nine-Judge Bench
in the Judges' Case-II, excluded the power of judicial review and was,
therefore, in conflict with the dedsion of a larger Bench in Kesavananda
G Bharati. The High Court held thdt such misapprehensions resulted from
a misreading of the decision of the nine-Judge Bench in the Judges' Case-II
and dismissed the writ petition.
+
A writ petition raising similar questions was filed before another
H High Court and the same was withdrawn from that High Court and
662
K. A REDDY v. GOVf. OF INDIA 663

transferred to this Court. A
The appellant submitted that Article 222 of the Constitution of India
was in substance a dead letter since the power thereunder was incapable
of exercise in the absence of guidelines provided in the Constitution itself;
that judicial review was a basic feature of the Constitution as held in
Kesavananda Bharti by a larger Bench and, therefore, the holding by the B
nine-Judge Bench in the Judges' Case-II excluding judicial review in the
matter of transfers was not good law; and that there was likely to be
arbitrariness in the transfer of High Court Judges and the.Judges' Case-II
should be clarified to prevent any arbitrariness.

On behalf of the respondents it was contended that such misap-
c
prehensions were unfounded since the Judges' Case-II had dealt with these
aspects and also indicated the guidelines to exclude any arbitrariness in
the transfer of Judges; that the Judges' Case-II was not in conflict with the
decision in Kesavananda Bharati inasmuch as it did not exclude judicial
review but merely emphasised the limited area thereof in view of the nature D
of that exercise, the discretion being vested in the highest constitutional
functionaries.

On behalf of the Sub-Committee on Judicial Accountability it was
contended that some more guidelines for effectuating the transfer policy E
could be indicated to ensure uniformity in its working.

Dismissing the appeal as well as the Transferred case, this Court

HELD: 1.1. The exercise of power of transfer under Article 222 of the
Constitution is to subserve a public purpose and to promote public F
interest for better administration of justice throughout the country, which
is the inherent guideline implicit in Article 222 as held in the Judges'
Case-II. 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, and refers to the inter- G
ests of public administration. (676-H; 677-A]

1.2. The guideline of public interest, i.e., for promoting better· ad-
ministration 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 H
664 SUPREME COURT REPORTS [1994] 1 S.C.R.

A accordance with the recommendation of the Chief Justice of India as
indicated in the Judges' Case-II, and its application to individual cases· is
. a question of fact in each case. La)'ing down exhaustive guidelines in this
behalf is neither expedient nor pragmatic. 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
B
exercise 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. Some such relevant facto~s
C 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 any litigation or property interest in the same
State; if the Judge, for any reason, has become controversial so that his
continuance in the same High Court is not conducive to his interest or to
D the image of the judiciary or to the proper functioning of that High Court,
or any other similar situation. The transfer of auy Judge with his consent
can, of course, be always made. [677-D-H]

Supreme Court Advocates-on-Record Association & Ors. v. Union of
India, [1993) S.C.C. 441; Gian Singh Mann v. The High Court of Punjab &
E Haryana & Anr., [1981) 1 S.C.R. 507 and Union of India v. Col. J.N. Sinha
& Anr., [1971) 1 S.C.R. 791, relied on.

2. The Chief Justice of India, as the pater familias of the judiciary,
can be safely relied upon in his wisdom, to ensure that transfer of a judge
F is so effected as to cause him the minimum inconvenience and to take into
account such personal factors as might be involved. The conferment of
power by Article 222 and.the proper manner of its exercise to exclude any
arbitrariness has then been indicated in the Judges' Case- IL Detailed
guidelines not to be found in the Constitution have to emerge in the
working of Article 222. After the Judges' Case-II, The Chief Justice of India
G constituted a Peer Committee .:· Jmprising of two seniormost puisne Judge
of the Supreme Court and two Chief Justices of High Court 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-IL This is sufficient safeguard
H against any likely arbitrariness or bias. There is no room left for any
)
K. A REDDY v. GOVf. OF INDIA 665

apprehension of arbitrariness or bias in the transfer of any Judge/Chief A
Justice of a High Court. [678-B-G]

3.1. It is time that the men at the-apex level of the Indian judiciary
are permitted to manage the affairs of the ,iudicial family and lo«;>k after
its welfare and interest instead of permitting repeated intrusions by some
in the guise of 'public interest' thereby rendering the Judges vulnerable to B
avoidable controversy involving them. There is 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.
[678-G, H; 679-A]
Supreme Cowt Advocates-on-Record Association & Ors. v. Union of C
India, [1993) 4 S.C.C. 441; Union of India v. Sankalchand Himatlal Singh
& Anr., [1978) 1 S.C.C. 423 and S.P. Gupta & Ors. v. Union of India, [1982)
2 S.C.R. 365, referred to.

3.2. Judicial reYiew of transfers of members of transferable services D
is exceptional and is made only in extraordinary cases on limited grounds.
This is so even in the case of transfer of sub-ordinate Judges by the High
Court, independence of subordinate Judges being equally importaat. This
being so, the cry for a larger area of justiciability in the case of transfer
of High Court Judges is incongrous when the power is to be exercised by
the highest constitutional functionaries of the Indian judiciary, with due E
care and circumspection. [679-B]

3.3. The Judges' Case-II does not exclude judicial review but merely
limits the area of justiciability to the constitutional requirement of recom-
mendation of the Chief Justice of India for exercise of the power under F
Article 222 by the President of India. The power under Article 222 oflhe
Constitution is to be exercised by the highest constitutional functionaries
in the country in the manner indicated which provides serveral inbuilt
checks against the likelihood of arbitrariness of bias. [679-D]

3.4. In S.P. Gupta, even though the concept of locus standi for G
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 tlie transferred
Judge and not at the instance of any one else. The need for restricting the
standing to sue in such a matter to the affected Judge alone, has been H
666 SUPREME COURT REPORTS [1994] 1 S.C.R.

A reiterated in the Judges' Case-I/. This emphasis in necessary to prevent any
transferred Judge exposed to any litigation involving him execpt when he
chooses to resort to it himself in the available limited area of justiciability.
(679-D-F]
3.S. The reduced area of justiciability has been indicated in the
B Judges' Case-I/. When it was said in the Judges' Case-II that the ground of
bias also it 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 on objective criterion on which the recommendation of the Chief
Justice of India is based, is an inbuilt check against arbitrariness and bias
indicating absence of need for judicial review on those grounds. In view of
C this it is unnecessary to provide any further safeguard. There is 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. (681-C,D]

Supreme Court Advocates-on-Record Association & Ors. v. Union of
D India, (1993) 4 S.C.C. 441, explained.
S.P. Gupta & Ors. v. Union of India, (1982) 2 S.C.R. 365 and
Kesavananda Bharati Sripadagalavaru v. State of Kera/a, (1973) Supp.
S.C.R. 1, referred to.

E Council of Civil Service Unions & Ors. v. Minister for the Civil Service,
(1985) A.C. 374, referred to.

Craig's Administrative Law, Second Edition, P. 291 and De Smith's
Judicial Review of Administrative Action, P. 32, referred to.

F CIVIL APPELLATE JURISDICTION: Civil Appeal No. 140 of
1994.

From the Judgment and Order aated 10.11.1993 of the Andhra
Pradesh High Court in W.P. No. 86184 of 1993.

G WITH

Transferred Case (C) No. 1of1994.

In Person for the Appellant in C.A. No. 140/1994.

H Milan K. Banerjee, Attorney General, A.K. Ganguli, Ms. A. Sub-
)
K.AREDDY v. GOVf. OFINDIA[VERMA,J.] 667

hashini, C.V.S. Rao, P. Parmeswaran, Navin Prakash and A. Subba Rao A
for the Respondents.

Ms. Indira J aisingh, Rajinder Sachher and Prashant Bhushan for the
Committee on Judicial accountability.

The Judgment of the Court was delivered by B

VERMA, J. 1. These matters are a sequel to the decision by a
nine-Judge Bench in Supreme Court Advocates-on-Record Association and
Ors. v. Union of India, (1993] 4 S.C.C. 441 (hereinafter called the "Judges
Case-II"), and relate to the question of transfer of Judges of the High C
Courts under Article 222 of the Constitution of India.

2. Civil Appeal No. 140 of 1994 by special leave is against the
judgment of the A ndhra Pradesh High Court dismissing a writ petition filed
by the appellant, K. Ashok Reddy. In substance, the relief claimed in the D
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 erosin of the independence of judiciary.
Another contention was that the decision by the nine-Judge Bench in the
Judges' Case-II excludes the power of judicial review and is, therefore, in E
conflict with the decision of a larger Bench in His Holiness &savananda
Bharati Sripadaqalavaru v. State of &rala, (1973) (Supp.) S.C.R. 1. 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-II. Civil Appeal No. 140 of 1994 has F
been filed by special leave against that judgment.

3. 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 Allahabd High Court and to hear and G
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 transfer. H
668 SUPREME COUR11 REPORTS (1994] 1 S.C.R.

A 4. Notice was issued to the Central Government as well as the
Attorney General of India in both these matter.

5. We have .heard the appellant, K. Ashok Reddy, a Practising
Advocate from Andhra Pradesh. The petitioner, Harikesh Singh in Trans-
B ferred 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 th~ assistance of the learned counsel
appearing in these matter. We also heard the learned Attorney General
and Shri A.K Ganguli on behalf of the Central Government and Ms. Indira
C Jaising who appeared on behalf on Sub-Committee on Judicial Account-
ability.

6. The appellant, K Ashok Reddy submitted that Article 222 of the
Constitution of India is in substance a dead letter since the power there-
D under is incapable of exercise in the absence of guidelines provided in the
Constitution itelf. He also submitted that judicial review is a basic feature
of the Constitution as held in Kesavananda Bharati by a larger Bench and,
therefore, the holding by a ajne-Judge Bench in the Judges Case- II
excluding judicial review iu the matter of transfers is not good law. Shri
Reddy expressed his concern at the likely arbitrariness in the transfer of
E 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. According to him, the Judges Case-II should be
clarified to prevent any arbitrariness.

F 7. The learned Attorney General submitted that the misapprehen-
sions of Shri Reddy are unfounded since the Judge Case-II 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-II does not. conflict with the decision in Kesavanda Bharati
G 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 Ganguli, on
behalf of the Central Government made the same submission with refer-
ence' to portions of the decision in the Judges' Case-II to indicate that these
matter are covered by that decision. Submissions of Ms. Indira J aising were
H substantially to the same effect with the addition that some more guidelines
)
K. A REDDY v. GOVI'. OF INDIA [VERMA, J.) 669

for effectuating the transfer policy could be indicated herein to ensure A
J... uniformity in its working. The points raised in the transferred case from
Allahabad are also covered by these submissions and do not require
separate consideration.

8. Having given our anxious consideration to the matter, we are
satisfied that the points raised in the civil appeal as well as the transfered B
case are adequately covered by the decision in the Judges' Case-II. It would
be appropriate to advert particularly to some portions of that decision
which are material for the present purpose, before dealing with the sub-
missions made.

9. The material portions of the majority opinion in Supreme Court
c
Advocates-on-Record Association and Others v. Union of India, [1993) 4
S.C.C. 441, are as under:

"The rule of law envisages the area of discretion to be
the minimum, requiring only the application of known D
principles or guidelines to ensure non-arbitrariness, but
to that limited extent, discretion is a pragmatic need.
Conferring discretion upon high functionaries and, when-
ever feasible, introducing the element of- plurality by re-
quiring a collective decision, are further checks against
arbitrariness. This is how idealism and pragmatism are E
reconciled and integrated, to make the system workable
in a satisfactory manner, ......

The norms developed in actual practice, which have
crystallized into conventions in this behalf, as visualised in
F
the speech of the President of the Constituent Assembly,
are mentioned later.

(Paras 468 and 469)

Transfers G
Every power vested in a public authority is to subserve
a public purpose, and must invariably be exercis~d 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 H
(
670 SUPREME COURT REPORTS (1994) 1 S.C.R.

A consultation with the Chief Justice of India, and the ab-
sence of the requirement of consultation with any other
functionary, is clearly indicative of the determinative na-
ture, 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. Sankal-
B chand Himatlal Sheth, (1978) 1S.C.R.423 and S.P. Gupta
v. Union of India, (1982] 2 S.C.R. 365. 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 has been so exercised since then,
c and transfer of Chief Justices has been the ordinary rule.
It is unnecessary to repeat the same.

(Para 470)

xxx xxx xxx
D
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
E 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
F 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. Thls
applies equally to all Judges appointed after the adoption
of the transfer policy, irrespective of whether they gave an
G
undertaking to go on transfer or not.

The Constituent Assembly Debates indicate that the
High Court Judges were intended to constitute an All-
India Cadre. Thi:, position cannot now be doubted after
H adoption of the policy of appointing Chief Justices from
)
K.AREDDY v. GOVT. OFINDIA[VERMA,J.] 671

outside and the maintenance of an all-India seniority A
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 transfter of any other Judge as punitive.

There is nothing in Article 222 to require the consent B
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 Jus-
c
tice, and it is not exhausted after the first transfer is made.
The contrary view in S.P. Gupta 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 D
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.
Gupta, there is no reason to treat any transfer as pu.'litive;
and, therefore, the observation in S.P. Gupta that a puni- E
tive 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.

Promotion of public interest by proper functioning of F
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 G
hereafter, must be followed by the Chief Justice of India,
for his guidance, while dealing with individual cases.
+
(Paras 472 to 475)

xxx xxx xxx H
,•

672 SUPREME COURT REPORTS (1994] 1 S.C.R.

A 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 ex-
pected of them to develop requisite norms by convention
B 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 - ~ot exhaustive
- are expected to be observed by the functionaries to
c regulate the exercise of their discretionary power in the
matters of appointments and transfers.

(Para 477)

xxx xxx xxx
D
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
E 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
F personal factors ralating to the concerned Judge, 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
G for better administration of justice.

xxx xxx xxx

(4) It may be desirable to transfer in advance the senior-
most Judge due for appointment as Chief Justice to the
H High Court where he is likely to be appointed ehief
KA REDDY v. GOVT. OF INDIA [VERMA, J.) 673

-'· Justice, to enable him to take over as Chief Justice as soon A
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 Jf
Chief Justice. In transfer of puisne Judges, parity in
proportion of transferred Judges must be maintained. be-
B
tween the High Courts, as far as possible.

(5) The recommendations in the Report of the Airears
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. c
(Para 479)

JUSTICIABILITY
Appointments and Transfers
D
The primacy of the judiciary in the matter of appoint-
ments and its determinative nature in transfers introduces
the judicial element in the 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. E
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 F
decisive in transfers, as indicated, the need for further
judcial review, as in other executive actions, is eliminated.
The reduction of the area of discretion of 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
G
discretion are sufficient checks against arbitrariness.
-+
These guidelines in the form of norms are not to be
construed as conferring any justiciable right in the trans-
ferred Judge. Apart from the constitutional requirement H
(
I

674 SUPREME COURT REPORTS [1994] 1 S.C.R.

A 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 suffi-
cient safeguard and protection against any arbitrariness
B or bias, as well as any erosion of the independence of the
judiciary.

This is also in accord with the public interest of ex-
cluding these appointments and transfers from litigative
c 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. The growing tendency of needkss in-
trusion by strangers and busybodies in. the functioning of
D the judiciary under the garb of public interest litigation,
in spite of the caution in S.P. Gupta while expanding the
concept of locus standi, was adverted to recently by a
Constitution Bench in Krishna Swami v. Union of India,
[1992] 4 S.C.C. 605. It is, therefore, necessary to spell out
E 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,
F 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)
G
Pandian., J. In his sparate concurring opinion has expressed his entire
agreement 01:1 this point, as under: - +
"Transfer of Judges

H With regard to the interpretation of Article 222
)
K.A REDDY v. GOVf. OFINDIA[VERMA,J.] 675

regarding transfer of Judges from one High Court to A
another, I entirely agree with the reasoning and conclusion
arrived at by learned brother, J.S. Verma, J.

(Para 252)

Conclusions B
Though I have given my reasons separately, as indi-
cated even at the threshold of the judgment, I am in
agreement with the conclusions of myleanred brother, J.S.
Verma, J. regarding the processs of appointment of
Judges, initiation of the proposal for appointments and c
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), (12) and (13)". D
(Para 253)

One of us (Kuldip Singh, J.) While concurring with the majority,
stated thus:

"So far as the interpretation of Article 222 of the
E
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 F
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 tc another.
Concept of "public interest" when read in Article 222
makes it obligatory that the views of the Chief Justice of
G
India are accepted by the executive. We also agree with
Verma, J. that a transfer made in public interest on the
+ recommendation of the Chief Justice of India is not jus-
ticiable".

(Para 407) H
(
676 SUPREME COURT REPORTS [1994] 1 S.C.R.

A "On the basis of the reasoning and discussion on
various issues, we conclude and hold as under:

xxx xxx xxx

(10) A Chief Justice/Judge may be transferred
B 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 case stands
c overruled to the extent.

(11) A proposal for transfer of a Chief Jus-
tice/Judge under Article 222 has to be initiated by
the Chief Justice of India and the ultimate recom-
D mendation in that respect is binding on the exec'u-
tive. ...
.

(12) 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 recomenda-
E tion of the Chief Justice of India.

xxx xxx xxx"

(Para 411) ,.i-

F 10. Ahmadi, J. in his separate opm1on, 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. Punchni,
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
G Judges' Case-II.
11. It 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
H the Judges' Case-II. The expression 'public interest' has a legal connotation
)
K. A REDDY v. GOVf. OF INDIA [VERMA, J.] 677

well known and properly understood and so also the requirement of A
promoting better administr~tion of justice throughout the country, which
is the guideline held to be implicit in Article 222 of the Constitution.

12. 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 B
Singh Mann v. The High Court of Punjab and Haryana and Anr., [1981] 1
S.C.R. 507 and Union of India v. Col. J.N Sinha and Anr., [1971] 1 S.C.R.
791).

13. In our opinion, the guideline of 'public interest, i.e., 'for promot- C
ing 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-II; and its application to individual D
cases is a question of fact in each case. Laying down exhaustive guidelines
in this behalf is neither e:i..1Jedient nor pragmatic. It has also been indicated
in the Judges' Case- II 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 E
the discretion of the Chief Justice of India which is be exercised in
consultation with this colleagues whose opinion is required to be taken for
this purpose. The factors' which may be relevant for promoting better
administratioJ?- of justice throughout the country to subserve the public
interest contemplated by such transfers would depend on the myriad F
situations which might have to be met. Some 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; G
if the Judge, for any reason, hai become controversial so that his con-
+ tinuance 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 H
(
678 SUPREME COURT REPORTS (1994] 1 S.C.R.

A of all the relevant factors in this behalf and are merely illustrative. ).._

14. The Chief Justice of India, as the pater familias 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
B is also to be found in the Judges' Case-II.

15. The myth of non-transferability of High Court Judges, not-
withstanding Article 222, was blown in Union of India v. Sankalchand ,)....
Himatlal Sheth and Anr., (1978) 1 S.C.R. 423. Thereafter, the constitutional
C validity of the transfer policy was judicially upheld in S.P. Gupta & Ors. etc.
etc. v. Union of India & Ors. etc. etc., [1982] 2 S.C.R. 365. The conferment
of that power by Article 222 and the proper manner of its exercise to
exclude any arbitrariness has then been iiidicated in the Judges' Case-II,
wherein the trust reposed by the President of the Constituent Ac;sembly in
the constitutional functionaries was recalled and adverted to. Dr. Rejendra
D Prasad had said:

"Many things which cannot be written in the Constitution
are done by conventions. Let me hope that we shall show
those capacities and develop those conventions".

E 16. It 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-II, the Chief Justice of
India constituted a Peer Committee comprising of the two seniormost
J.
puisne Judge of the Supreme Court and two Chief Justice of High Courts
F 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-II. 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/Chie1
G Justice of a High Court. It is linie 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 r
Judges vulnerable to avoidable controversy involving them. We are con-
strained to observe that the Allahal>ad case before us is of ·that kind. We
H have no doubt that the Chief Justice of India acting on the institutional
)
K. A REDDY v. GOVT. OF INDIA [VERMA, J.] 679

advice available to him is the surest and safes~ bet for preservation of the A
independence of judiciary.

17. 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. This B
being so, 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
case and circumspection indicated in the Judges' Case-II and herein.

18. The Judges' Case-II does not exclude judicial review but merely C
limits the area of justiciability to the constitutional requirement of recom-
mendation 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 D
checks against the likelihood of arbitrariness or bias. In S.P. Gupta (supra),
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 E
to the affected Judge alone has been reiterated in the Judges' Case-II. It is,
therefore, made clear that the transfer of a High Court Judge is justiciable
only on the ground indicated in the Judges' Case-II 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 F
limited area of justiciability.

19. A useful passage from Craig's Administrative Law (Second Edi-
tion) is as under:

"The traditional position was that the courts would control G
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
G.C.H.Q. case. Their Lordships emphasised that the
reviewability of discretionary power should be dependent H
680 SUPREME COURT REPORTS [1994] 1 S.C.R.

A upon the subject-matter thereof, and not whether its
source was statute or the prerogative. Certain exercises of
prerogative power would, becuase of their subject-matter,
be less justiciable, with Lord Roskill compiling the
broadest list of such forbidden territory....... "

B (at p;;.ge 291)

In Council of Civil Service Unions and Others v. Minister for the Civil
Service, [1985] A.C. 374 (G.C.H.Q. Case), Lord Roskill stated thus: )...

c "But I do not think 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. Preroga-
D
tive 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 other are not, I think,
susceptible to judicial review because their nature and
E subject matter are such as not to be amenable to the
judicial process ...... "
(at page 418)

20. The same indication of judicial self-restraint in such matters is to
F be found in De Smith's Judicial Review of Administrative Action, thus:

"Judicial self-restraint was still more marked in cases
where attempts were made to impugn the exercise of
discretionary powers by alleif 1 abuse of the discretion
itself rather than alleging non-existence of the state of
G 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 con-
sideration of national policy ...... "
H (at page 32)
)
K. A. REDDY v. GOVT. OF INDIA [VERMA, .J.] 681

21. It is for this reason that the 1educed area of justiciability has been A
indicated in the Judges' Case-II. When it was said in the Judges' Case-II
that the gound 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 on objective criterion on which the recommenda-
tion of the Chief Justice of India is based, is an inbuilt check against B
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.

22. Ms. Indira J aisingh also submitted that any such litigation should
lie only in the Supreme Court of ·India and not in any other court to prevent C
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-II 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 unnec~ssary 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 D
would promptly consider the option of requesting this Court to withdraw
the case to this Court for decision to avoid any embarrassment.

23. For the aforesaid reasons, we must hold that there is no merit in
any of the points raised in these matters. Accordingly, both matters are E
dismissed.

G.N. Appeals dismissed.