Union of India v Sankalchand Himatlal Sheth
Rule established
The consent of a Judge is not required for a transfer under Article 222, but the power may be exercised only in the public interest and never by way of punishment. The consultation with the Chief Justice of India must be full and effective, meaning that he must have all relevant material and a real opportunity to form an informed view.
Facts
- The respondent was a permanent Judge of the High Court of Gujarat.
- He was transferred by the President to the High Court of Andhra Pradesh under Art.222(1).
- The transfer was made without his consent, and he had in fact expressed his unwillingness.
- The transfer took place during a period in which a number of High Court Judges were transferred, and it was alleged that the transfers were being used to discipline Judges who had decided cases against the Government.
- The Chief Justice of India had been consulted, but the respondent contended that the consultation had been perfunctory and that adequate material had not been placed before him.
- The respondent challenged the transfer before the High Court, which decided in his favour, and the Union appealed.
Issue
- Whether a High Court Judge may be transferred without his consent, and what the requirement of consultation with the Chief Justice of India involves.
Held
- The Court held that consent is not required: Art.222 confers a power of transfer in unqualified terms and does not condition it on the Judge's agreement. But the power is subject to two important limitations. First, it may be exercised only in the public interest, that is in the interest of the better administration of justice, and never as a punishment or as a means of expressing displeasure at a Judge's decisions, because a punitive transfer would destroy the independence which the Constitution takes such pains to secure. Second, the consultation with the Chief Justice of India must be full and effective: it is not a formality, and the Chief Justice must be placed in possession of all the relevant facts and material so that he can form and express a considered opinion. A transfer made without such consultation, or for punitive reasons, is open to challenge.
Ratio Decidendi
Independence of the judiciary is protected by structural devices, of which security of tenure and freedom from executive pressure are central. A power of transfer exercisable at the executive's pleasure would allow a Judge to be moved for deciding against the Government, and the mere possibility of that would influence adjudication. Requiring public interest as the sole permissible purpose, and effective consultation with the head of the judiciary as the procedure, reconciles the administrative need to transfer Judges with the constitutional need to keep them independent.
How to use it in an exam
- The foundational case on Art.222. State the three propositions in order: consent not required, public interest only, never punitive, and consultation must be full and effective.
- Note what the case did not decide: it did not give the Chief Justice's opinion primacy. That came later, with SC Advocates on Record Association v Union of India 1993, and the composition of the collegium for transfers, being the Chief Justice and the two senior-most Judges, comes from Special Reference No 1 of 1998.
- Use in problems where a transfer follows soon after an adverse judgment. The inference of punitive purpose is drawn from the sequence and from the absence of any administrative justification.
- The phrase "full and effective consultation" is worth quoting, and applies equally to consultation under Arts.124(2) and 217(1).
- Read with SP Gupta v Union of India 1982, decided a few years later, which dealt with appointments, additional Judges and transfers and reached a different conclusion on primacy which was itself later overruled.
Source
Source: (1977) 4 SCC 193; AIR 1977 SC 2328; Constitution Bench of five Judges; the foundational case on Art.222; citation and bench checked against Indian Kanoon and reported sources, audit of 12 August 2026
This is an educational summary, not the judgment itself. Cite the reported version in professional or academic work.