TRANSFER OF JUDGES: JUDICIAL INTERPRETATION OF

CONSTITUTIONAL PROVISIONS

5.1: CONSTITUTIONAL LAW – I

Submitted by

Hricha Gandhi

Roll No.: UG2016-23

Submitted to

Prof. S L Deshpande

(Professor of Law)

Dr. Vijay Pratap Tiwari

(Asso. Prof. of Law)

Academic Year: 2018-19

Maharashtra National Law University, Nagpur

 TABLE OF CONTENTS
CASES ............................................................................................................................................ ii
1. INTRODUCTION ................................................................................................................... 1
2. OBJECTIVES OF STUDY ..................................................................................................... 1
3. RESEARCH METHODOLOGY ............................................................................................ 1
4. RESEARCH SCOPE AND LIMITATIONS .......................................................................... 2
5. TRANSFER OF JUDGES: HISTORICAL PERSPECTIVE .................................................. 2
5.1 SOME HISTORICAL PRECEDENTS:................................................................................ 2
6. TRANSFER OF JUDGES: THE PRACTICE ............................................................................ 5
6.1 CONSTITUTIONAL AND LEGAL PROVSIONS FOR TRANSFER OF JUDGES ......... 5
6.2 LAW ON THE SUBJECT: .............................................................................................. 7
6.3 NEED FOR TRANSFER. ..................................................................................................... 8
6.4 DANGER FROM WITHIN. ................................................................................................. 9
6.5 EXTRA-JUDICIAL ACTIVITIES OF SOME JUDGES. .................................................... 9
6.6 OBJECTIONS TO TRANSFER. .......................................................................................... 9
7. JUDICIAL REFORM: ........................................................................................................... 10
8. NATIONAL INTEGRATION .............................................................................................. 11
9. JUDICIAL INTERPRETATIONS ........................................................................................ 12
10. CONCLUSION ..................................................................................................................... 14
11. BIBLIOGRAPHY ................................................................................................................. 15

i
 CASES
In re special presidential reference of 1998. ................................................................................. 17

S.P. Gupta Vs. Union of India ...................................................................................................... 17

Supreme Court Advocates-on-Record..v UOI……………………………………………………17

Union of India v. Sankal Chand Sheth…………………………………………………………….………10

V. B. Raju v. State of Gujarat ......................................................................................................... 9

ii
 1. INTRODUCTION
Civilization rests upon law and law rests upon courts. In every State which recognizes the rule of
'law, the existence of a body to dispense justice according to law is an absolute necessity. If -the
judiciary has to be a bulwark for the protection 'of the rights of the individual and mete out even-
handed justice without fear and favour that should be independent.
Independence of Judiciary is bedrock of the democracy. This independence must be combined
with accountability and responsibility. The transfer of High Court judges is a subject which has
evoked much public attention' in recent years after the Union Government’s decision to make some
controversial transfers of the judges in High Courts. In this paper, an attempt is made, to study the
constitutional provisions, on the transfer of judges in the light of the concept of independence of
the judiciary, one of the pillars of a free democracy.

2. OBJECTIVES OF STUDY
The general objective of this study is to investigate and understand the theory relating to the
transfer of judges: judicial interpretation of constitutional provisions.
. In particular, this proposed study seeks to achieve the following objectives.
- To trace the concept of the transfer of judges;
- To examine the provisions of Constitution been framed in relation to transfer of
judges;
- To analyses through various sources and case laws the impact of those provisions
on the Indian judiciary;
- To observe the implication and adaptability of these concepts shaping the
appointment and transfer of judges.

3. RESEARCH METHODOLOGY
In order to approach the prescribed objectives of study, doctrinal model of research methodology
is proposed, intensive review on the subject will be applied and the issues under study would be
examined in a systematic manner. The broad facets of the study are indicated in terms of proposed
chapter in the substantive sections of this proposal. The study will involve:

1
i) To analyses through various sources and case laws the impact of those provisions on the
transfer of judges;
ii) To examine the status of these concepts in present time that whether these provisions have
achieved the purpose for which it was formed.
This doctrinal work adopted for the writing of research work is both analytical and descriptive.
The researcher will make an effort to critically examine the primary sources like Statutes, reports
of the committees and commissions besides the secondary sources like books, articles, journals,
newspapers, case-laws, and e-resources. Opinions of research scholars, academicians, and other
experts including the historians who have dealt with this problem grossly.
E-resources have majorly contributed in research for getting the most relevant and latest
information on the web which has helped the researcher to explore the subject through various
dimensions.
4. RESEARCH SCOPE AND LIMITATIONS
Transfer of judges and the judicial interpretation of constitutional provisions, present research
paper has proposed the transfer. Appointment how it gets precluded and then how the
constitutional framers tried to eradicate the problem faced in transfer of judges that they had and
the executive influence in the same on the basis of their working, etc.. encompasses various views
and perspectives from which the concept has been understood and analysed judicially through
various theories understanding has been developed. This research paper has been made after
referring to various sites, course books, articles etc.

5. TRANSFER OF JUDGES: HISTORICAL PERSPECTIVE

5.1 SOME HISTORICAL PRECEDENTS:
The idea of transfer of Judges is neither newfangled nor novel. Even during the British days Judges
were transferred from some parts of the Empire and the Commonwealth to the other parts. Some
Judges were transferred to the Madras High Court from other parts of the Commonwealth and also
from some provinces of India. Sir Abdur Rahim, Sir Abdul Rahman, Sir Lionel Leach, Sir William
Gentle, Sir Gilbert Stone, Justice Kaushal of the Supreme Court were transferred to the Madras
High Court and they have all distinguished themselves for their impregnable sense of justice
fearless, impartiality and dignified conduct. There are also many examples of great Judges who
were transferred from one State to other States of India. Justice S.R. Das was transferred from

2
Calcutta to East Punjab as Chief Justice. Justice Das Gupta was transferred from Calcutta to
Mysore as Chief Justice. Justice Ansari was transferred as Chief Justice to Kerala from Bihar.
Justice Narasimhan was transferred to Bihar from Orissa. Justice Burman was transferred from
Bihar to Orissa as Chief Justice. Many English Barristers, despite their, not knowing the local
language, have shed lustre on the image of the judiciary and have enhanced the prestige of the
great institution.
In the present conditions of the higher judiciary there is a universal feeling that in the interest of
upholding the dignity and judicial independence of Judges, the transfer of Judges and Chief
Justices is an absolute necessity and an impelling desideratum today.
Under the Government of India Act, 1935, there was no provision directly dealing with the transfer
of judges. But, in 1944 Section 220 of the Government of India Act dealing with the constitution
of' High Courts 'Was amended and a' new clause was introduced (Clause c) in Article 220(2) which
provided that "the office of a judge shall be vacated by his being appointed by His Majesty to be
the judge of the Federal Court or of another High Court.1” This provision clearly points towards
the existence of the practice of appointing a sitting judge of one High Court as a judge of another
High Court. But, nowhere in the provision was the word “transfer” used and therefore it is not
certain whether this provision was really intended for transfer of judges.
When the Constitution was being drafted, the Drafting Committee did not incorporate any
provision for transfer in the Draft Constitution. But, Clause (c) of the' proviso to Article 193(1) of
the Draft Constitution had copied Section 220(2)(c) of the Government of India Act and this
provided for vacation of office of a judge on his being appointed by the President to be the judge
of the Supreme Court or of any other High Court. During the discussion of the Draft Constitution
in the Assembly, an amendment was moved by two members, Shri. R.R. Divaker and Shri. V.V.
Krishna Moorthy Rao. They suggested the introduction of para (d) of the proviso to Clause (1) of
Article 193 providing that “Every judge of the High Court shall be liable to be transferred to other
High Courts.”2 But the Drafting Committee felt that this amendment was unnecessary because
there was no bar under Article 193 to a judge of one High Court being appointed a judge of another
High Court, and clause (c) of the proviso to Clause (1) of Article 193 clearly provided that the

1
India (Miscellaneous Provisions) Act, 1944, Sections 2 and 6(1).
2
B. Shiva Rao, Framing India’s Constitution, Volume 4, p.365.

3
office of the judge shall be vacated by his being appointed by the President to be a judge of the
Supreme Court or of any other High Court.3
However, the Drafting Committee subsequently decided to incorporate an express provision for
the transfer of judges. According to this provision, the President was given the power to transfer a
judge from one High Court to another High Court, within the territory of India.4 Provision was
also made for compensatory allowance for the judges transferred away from their home States, but
the quantum was left to be decided by Parliament by law and until so determined such allowance
as the President may by order fix.5 The Constituent Assembly while discussing the revised draft
felt that the power to transfer judges should not be completely vested in the President which would
lead to abuse of power and therefore an amendment which required the President of India to consult
the Chief Justice of India before exercising the power of transfer was adopted by the Assembly.
Thus Article 222(1) which was finally approved by the Assembly provided that the President may
transfer a judge of a High Court within the territory of India after consultation with the Chief
Justice of India.
In 1956 following State Reorganization Act 1956 it was felt necessary that provision for
compensatory allowance be omitted in order to facilitate easy movement of judges to newly
constituted High Courts.6 Thus, this provision was omitted by Constitution (7th Amendment) Act,
1956. 7 However, this was re-introduced into the Constitution by the Constitution (15th
Amendment) Act, 1963.8

3
Ibid
4
Revised Draft Article 222(1).
5
Revised Draft Article 222(2).
6
V. B. Raju v. State of Gujarat (A.1.R. 1980 S.C. 2075)
7
Section 14 of the Constitution (7th Amendment) Act, 1956 deleted Article 222(2) of the Constitution.
8
Section 5 of the Constitution (15th Amendment) Act, 1963 inserted Clause (2) of Article 222.

4
6. TRANSFER OF JUDGES: THE PRACTICE
6.1 CONSTITUTIONAL AND LEGAL PROVSIONS FOR TRANSFER OF JUDGES
Article 222
1. The President may after consultation with the Chief Justice of India transfer a judge from
one High Court to another.
2. When a judge has been or is so transferred, he shall during the period he serves, after the
commencement of the Constitution (Fifteenth Amendment) Act, 1963 as a judge of other
High Court be entitled to receive in addition to his salary such compensatory allowance as
may be determined by Parliament by law, and until so determined, such compensatory
allowance as the President may by order fix.
In a response to presidential reference to Supreme Court, the apex court opined that Chief Justice
of India should obtain the views of chief judges of both the high courts, i.e. the high court from
where the proposed transfer is to be affected as well as the high court to which the transfer is to be
affected. Apart from that, the Chief Justice of India should also obtain the views of the collegium
of Supreme Court judges. The views should be expressed in writing and should be considered by
CJI and the four senior-most Judges of the Supreme Court. The views should be conveyed to the
government of India along with the proposal of transfer.
However, in certain instances the transfer policy been used punitively to transfer corrupt or suspect
judges. The transfer policy should not be driven on whims. The issue is that the process of transfer
should be transparent, apart from that the Judicial Standards and Accountability Bill which laid
down the enforceable standards of conduct for judges, should be passed.
The provision was invoked a number of times and some of the judges of the High Courts were
transferred to other High Courts either as Chief Justices or as puisne judges. Most of such transfers
were made &wing the States reorganisation, as many new High Courts were created at that time.
During emergency in 1976 sixteen judges were transferred to different High Courts. One of the
judges so transferred challenged the constitutional validity of his transfer before the High Court of
Gujarat and later in ' the Supreme Court. The following were the main grounds of challenge:9
1. The transfer order was passed without the consent of the judge transferred; such consent
must be necessarily implied in Article 222(1) of the Constitution and therefore the transfer

9
Union of India v. Sankal Chand Sheth, A.I.R. 1977 S.C. 2328 at 2333

5
 of a judge from one High Court to another High Court without his consent is
unconstitutional.
2. The order was passed without effective consultation with the Chief Justice of India,
"Consultation" in Article 222(1) means 'effective consultation' and since the pre-condition
of Article 222(1) that no transfer can be made without such consultation was not fulfilled,
the tiansfer order was bad and of no effect.
3. The order was passed in breach of the assurance given on behalf of the government of
India, by the then Law Ministei: Mr. A. K. Sen in 1963 that the High Court judges would
not be transferred without their consent. Mr. Sheth having accepted judgeship of Gujarat
High Court in 1969 on the faith of this assurance was bound by the assurance on the
doctrine of promissory estoppel.
4. The order of transfer militated against public interest. The power conferred by Article
222(1) was conditioned by the existence and requirement of public interest and since the
impugned order was not shown to have been made in public interest, it was ultra vires.
5. In the Gujarat High Court petition was heard by a full Bench consisting of three judges.
The Court unanimously struck down the order of transfer. The judges through different
processes of reasoning arrived at the same conclusion. A. D. Desai, J. was of the view that
the order was invalid, because it was passed without Mr. Sheth's consent, whereas D. A.
Desai, J. was of the view that there was no effective consultation with the Chief Justice of
India which was an essential condition precedent for the exercise of power under Article
222 (1) J. B. Mehta, J. was of the view that the transfer of a judge was an administrative
action and as the action was taken without complying with the principles of natural justice,
the transfer was invalid. 10 All the judges rejected the contention based on promissory
estoppel.
6. In the Supreme Court, the appeal was heard by a Constitution Bench consisting of
Chandrachud, Bhagwati, Krishna Iyer, Untwalia and Fazal Ali, JJ. During the pendency of
the appeal, the Central Government decided to withdraw the transfer order and Mr. Sankal
Chand Sheth11 was allowed to go back to Gujarat High Court. In spite of this, as this case
involved many important constitutional questions, the Court delivered its judgment. The

11
Ibid.

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majority of the Court (Chandrachud, Krishna Iyer and Fazal Ali, JJ.) held that there was no
need nor any justification, in order to protect the independence of the judiciary, for
construing Article 222(1) to mean that a judge could not be transferred without his consent.
But the minority of the Court (P. N. Bhagwati, Untwalia, JJ.) held that a judge of a High
Court could not be transferred without his consent. The majority of the Court held that
there are sufficient builtin safeguards in Article 222(1) which would ensure fair play. They
are “The power to transfer a High Court Judge could be exercised in public interest only
and not by way of punishment. There must be full, complete and effective consultation
between the President of India and the Chief Justice of India before an order of transfer
under that article was made. In 'substance and effect, the judge' could not complain of
arbitrariness or unfair play if the due procedure was followed.
6.2 LAW ON THE SUBJECT:

Interpreting Articles 217 and 222 of the Constitution in that case majority of the Supreme
Court Judges held that a transfer of a Judge from one High Court to another must be in
public interest and not by way of punishment. Prior consent was held not necessary.
Personal inconvenience and language problem should also be taken into consideration as
far as possible. The power to appoint Judges is executive in nature and the President is
bound by the advice of the Cabinet by virtue of Article 74. The principle of the
independence of the judiciary is not an abstract conception but it is a living faith which
must derive its inspiration from the constitutional values.
The transfer of a High Court Judge in public interest, does not involve ‘fresh appointment’.
Consent cannot be read into Article 222 (1). The non-consensual transfers are, therefore,
within the purview of Article 222 (1).
In cases of transfers of High Court Judges in public interest, without involving any
punishment, the two safeguards of public interest and effective consultation subject to
which the power of transfer is to be exercised cannot be regarded as illusory or unreal and
if they afford real protection to the Judge concerned against the abuse of power, there would
be no need to read consent into Article 222(1).

7
6.3 NEED FOR TRANSFER.
The excellent atmosphere of a High Court depends on the Chief Justice's impeccable
honour, fearless impartiality and severe discipline that would set the tone of the functioning
of any High Court. If the Chief Sentinel does not guard the temple of justice properly many
abuses imperceptibly creep in with the result that the fountain of justice gets fouled
increasingly. H.M. Seervai observes: “Many Chief Justices have found that kindliness was
always breaking in when stern steps were required against a brother Judge, and thus an
admitted perversion of justice has remained without a remedy.”
In the year 1958 the Law Commission considered that the propriety and the power to
transfer a Judge from one State to another, could be used as a last resort for breaking up
the social and personal contacts of the Judge embracing many things including friendships
or intimacies with the members of the Bar. The Commission found that some Judges did
not maintain the detachment expected of them. The Commission notes “that private
members of the Bar gave dinners and lunches in public places to Judges in order to create
an impression that the Judges were very friendly with them; that Judges were too free in
their contacts with State Ministers, and a transferable cadre of Judges would break up these
undesirable social contacts of a Judge. In its report, the Commission read a lecture to Judges
on the need to ‘maintain an aloofness amounting almost to self-imposed isolation’, and
supported its view by quoting Sir Winston Churchill's words that “A form of life and
conduct far more severe and restricted that that of ordinary people is required from Judges
and though unwritten, has been most strictly observed. They are at once privileged and
restricted. They have to present a continuous aspect of dignity and conduct.” Since 1958
things have not improved; on the contrary, the picture wears worsening sombre aspects. As
an observer of the judicial scene for over four decades and as an insider of the machinery
of justice, I am of the view that Judges have not improved their image of continual
aloofness, detachment and dignity in the public eye and estimation. A transferable cadre of
Judges, in my view, would have the effect of breaking up the social contact of a Judge
when such contacts have undesirable effects on his judicial work.

8
 6.4 DANGER FROM WITHIN.
Justice V.R. Krishna Iyer warned the judiciary of the ‘danger from within’ and expostulated
the serious infirmities and evils affecting the image of the judiciary. Justice Krishna Iyer's
diatribe only proves that Judges “are human with human prejudices. And that some are
more human than others.” 12
Krishna Iyer declaimed against the Judges as follows:
“Judges surrendered before several temptations, not money alone. Justice Iyer cited the
land-allotment controversies in Bombay and Chandigarh where not only High Court Judges
but some Supreme Court Judges were also involved. The temptations came in devious
ways. It could be a son settled well abroad or a comfortable job for Judge's relative in an
embassy. Justice Iyer said that if an investigative reporter did a story on these it would
shock the people. Even in the United States the judiciary has been accused of ‘falling flat’
before the ‘corporate sector’.”
Some Judges are swayed by local considerations, local issues, personal likes and dislikes,
passions and prejudices, pulls and pressures. Persuasions and seductions. Some Judges held
‘Durbar’ Courts distributing their patronage to reigning courtiers or fawning favorites.
There are various subtle and subterranean ways of tipping the scales in favour of their
former juniors.
These evils that are likely to afflict the judicial career of some Judges are eliminated by a
Judge finding his position and function in new surroundings of a different State.
6.5 EXTRA-JUDICIAL ACTIVITIES OF SOME JUDGES.
It is a saddening spectacle to witness some Judges who are suffering from unquenchable
thirst and avidity to appear on evening public-platforms even along with ministers or
cinema artists or mercenary henchmen of capitalists just for getting garlanded like
pompous popinjays.
6.6 OBJECTIONS TO TRANSFER.
A serious objection is raised against the doctrine of transfer of Judges. It is solely based on
the apprehension that the power of the President to transfer Judges may be used as a cloak
for punishment and victimisation of very independent Judges. Some unhappy instances of

12
The quotation is extracted from ‘The Politics of the Judiciary’ by J.A.G. Griffith.

9
 the emergency rule may lend strength to such an apprehension which may even seem well-
founded. But there are various ways of removing even an appearance of such an
apprehension by resorting to some positive method followed and implemented without any
deviation or exception. One method suggested is that all the Chief Justices and Judges Nos.
3, 5, 7, 9 etc. may be transferred in the first year. During the next year Nos. 2, 4, 6, 8 etc.
may be transferred upto the point of the strength of the High Court reaching 50% of the
Judges from outside the State. And so on. Such a method is totally devoid of any
manipulations; it is illustrative and not exhaustive.

7. JUDICIAL REFORM:
A very significant facet of judicial reform is undoubtedly the well-intentioned proposal to
make the posts of Chief Justices and other puisne Judges transferable. In the mid-fifties it
was seriously mooted that at least one-third of the strength of Judges of each High Court
must be drawn from the States other than the one in which they are to function. Doubtless,
such transfers are conducive to the promotion of national integration. The area for
recruitment is also enlarged with the result that search for talent and merit is rendered
easier. The former Law Minister gave convincing reasons for not making selective and
discriminatory transfers. A calm, dispassionate consideration of the statements of Law
Ministers coupled with other factors would clearly show that the Law Ministers are
absolutely right in pleading that Judges including Chief Justices should be transferable as
a matter of course. Justice Khanna expressed the view favouring induction of one-third of
High Court Judges from outside the State; and, in my view, this may be enlarged into one
half of the strength of each High Court in the current atmosphere. The Supreme Court
judgment does not pose any threat to the independence of the judiciary in view of
constitutional safeguards. It has now become settled specifically that a High Court Judge
can be transferred after consultation with the Chief Justice of India but without the consent
of the, Judge concerned. There should not be any appearance of vindictiveness or
punishment for supposed misdeeds in the act of transfer.

10
 8. NATIONAL INTEGRATION:
The States Reorganisation Commission also recommended that one-third of the number of
Judges in a High Court be drawn from outside the State. The Law Commission and the
Administrative Reforms Commission have supported this doctrine of transfer. The device
of transfer along with the initial appointment of outside Judges would help in attaining the
objective of national integration. The infusion of outside Judges would invest the Court
with an air of dignity. The infusion of new and outside blood would chasten and broaden
the vision of this Court especially in dealing with highly emotional or local or regional
issues. To oppose the appointment of Judges on the basis of want of knowledge of local
language is simply puerile and churlish. British Judges have added a golden chapter to the
history of Indian judiciary despite their want of knowledge of local language. English is
the language of every High Court. The basic judicial system solely founded on Anglo-
Saxon jurisprudence is the same all over India despite variations in the local laws.
Appointment of Chief Justice from outside the State in all the High Courts as a rule is a
happy augury and a good beginning. A clear-cut policy on transfer by the present Law
Minister appears to leave no room for arbitrariness nor does it savour of any vindictiveness.
The guidelines for implementing the new policy of the Union Government were adopted
after consulting the Chief Justice of India. The guideline relate to inter se seniority of
puisne Judges and related matters. While implementing the policy, the appointments or
transfers will be made in accordance with the provisions of Article 217 or Article 222.13
Now is the opportune time for the Union Government and the Chief Justice of India to
implement this judicial reform of transfer of Chief Justices and puisne Judges which has
been in the air from the days of Home Minister G.B. Pant and the States Reorganisation
Commission.

13
Constitution of India.

11
 9. JUDICIAL INTERPRETATIONS
Prior to 1990, there was a consensus that ‘consultation’ under Article 124(2) and Article 217 (1),
did not necessarily mean ‘concurrence’. In the S.P. Gupta Vs. Union of India14, majority took the
view that the opinion of Chief Justice of India does not have primacy in the matter of appointment
of Judges of the Supreme Court and the High Courts, and that the primacy lay with the Central
Government. However, this view was revised in 1993 by another decision of the Supreme Court
in the Second (II) Judges Case15, which held that though the appointment is ultimately an executive
act, the constitutional doctrine of judicial review did not justify the primacy of the executive and
that primacy of the opinion of the Chief Justice of India was essential, in view of the constitutional
obligation of consultation with the Chief Justice of India. The judgment held that such a view
safeguarded the independence of the judiciary even in the appointment of Judges. The
ascertainment of the views of other Judges of the Supreme Court which is an essential requirement
under Article 124 (2) of the Constitution was sought to be met by the Chief Justice by consulting
two senior most Judges of the Supreme Court. For appointments to the High Courts, the Chief
Justice of India would elicit the views of his colleagues who are conversant with the affairs of the
concerned High Court. In the case of transfer of Judges of High Courts and Chief Justices of High
Courts, the opinion of the Chief Justice of India was held to be determinative. 4. In the Presidential
reference made under Article 143 of the Constitution seeking clarification with respect to the
meaning of ‘consultation’ as in Article 124 16 laid down by the Supreme Court by a majority
judgment in Second Judges case, the Supreme Court gave its Advisory Opinion on October 28,
1998 in Third (III) Judges Case17 clarifying the scope and extent of the size of the Collegium as
well as the manner in which the Chief Justice of India will hold consultations with other Judges.
It clarified that the Chief Justice of India will form a Collegium’ of senior most Judges for
consultation regarding the appointment of Judges or transfer of Chief Justice or Judge of High
Court. It also held that the opinion of the Chief Justice of India would have primacy. This judgment
resulted in a Memorandum of Procedure laying down the detailed process and procedure of
appointment of Judges to High Courts and the Supreme Court, which is being presently followed.

14
1981 (Supp) SCC 87.
15
(1993) 4 SCC 441.
16
Constitution of India.
17
(1998) 7 SCC 739.

12
The Government, with a view to broad base the appointment process and make it more
participatory to ensure greater transparency and objectivity in the appointments to higher judiciary,
proposed to set up the National Judicial Appointments Commission (NJAC) with enactment of the
Constitution (Ninety-ninth Amendment) Act, 2014 and the National Judicial Appointments
Commission Act, 2014 w.e.f. 13th April, 2015. However, the Constitutional validity of both the
Acts was challenged in the Supreme Court. The Supreme Court vide its order dated 16.10.2015
has inter-alia struck down these two enactments and has simultaneously revived the 'Collegium
System'. Subsequently, Supreme Court vide its order dated 16.12.2015 directed Government to
supplement the Memorandum of Procedure for appointment of Judges of Supreme Court and High
Courts (MoPs) taking into account factors like eligibility, transparency in the appointment process,
establishment of Secretariat and Complaint mechanism in consultation with Supreme Court
Collegium/Chief Justice of India. The MoPs are under finalisation in consultation with the Chief
Justice of India.

13
 10. CONCLUSION

An inviolable convention
It is said that he does not know law who does not know the spirit of the law. A convention
which embodies the very spirit of a constitution is, therefore, more truly the constitution
than a mere letter of the constitution. The spirit of the Constitution requires that the
government should honour the convention that judicial appointments should be made on
the advice of the Chief Justice of India and other constitutional authorities, the former
prevailing in the case of difference. The government is the government of the people. It is
unthinkable that it would violate this convention and thereby the very spirit of the
Constitution. But suppose it were to do so. Readers of Diceys18 book are familiar with the
proposition that though the conventions of a constitution are not technically enforceable in
a court of law they are never violated because the whole scheme of the constitution and the
government is based on the assumption that these conventions would be invariably
followed. Breach of any such convention would totally oppose the working of the
constitution and the government. Indeed the famous liberal judge Lord Denning M.R. has
recently dealt with such an extreme possibility of the government violating a convention
and thereby the spirit of the law.19 He suggested that if a convention is actually violated by
the executive, the judges should enforce such convention as a part of the constitutional law.
His observations always deserve respectful consideration. If he could make such a
suggestion in respect of the English Constitution, in which rights do not arise out of a
written text, a fortiori, such a suggestion is even more appropriate in the context of the
Constitution of India. It is to be hoped that such an extreme occasion would never arise and
the courts would work the Constitution in its true spirit and thus fulfil its object to ensure
the independence of judiciary.

18
Constitutional Law of India (2ntJ ed. 197>76 and 3rd ed 1983).
19
“Misuse of Pow” 55 4wt. I* J, 720 at/722 (1981).

14
11. BIBLIOGRAPHY
1. Websites
 https://www.thehindu.com/opinion/lead/getting-to-know-the-abc-of-
cag/article2568360.ece
 https://cag.gov.in/content/AG%27s-offices
 https://www.pen2print.org/2017/04/role-of-cag-in-meeting-demand-for-good.html
 http://www.yourarticlelibrary.com/accounting/government-accounts/the-comptroller-
and-auditor-general-of-india-2/51847
2. Books

 M.P Jain, Indian Constitutional Law, 2052 (LexisNexis Butterworths Wadhwa Nagpur,
6th ed., 2010).
 V N Shukla, Constitution of India 870 (Eastern Book Company, 11th ed., 2011).

3. Online databases
 SCC Online
 All India Reporter
 LexisNexis

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