The framers of the Constitution established independent and impartial judiciary in India. But the image of judiciary in its functional aspect is not fully independent. The establishment of independent judiciary remains more in the textbook of our Constitution. The judges of the Supreme Court of India are appointed by the President of India. The Chief Justice of the Supreme Court of India is appointed by the President with consultation of such of the judges of the Supreme Court of India and the High Courts as he deems necessary for the purpose. But in appointing other judges, the President always consults the Chief Justice of India. He may consult such other judges of the Supreme Court of India and the High Courts as he may deem necessary. But practically the power of the President to appoint judges is purely formal because in this matter, he acts on the aid and advice of the Council of Ministers as per Article 124(2) of the Constitution of India.

So there is the apprehension that politics might interfere in the appointment of the Judges. The practice upto 1973 was to appoint the senior-most Judge of the Supreme Court as the Chief Justice of India. But, on April 25, 1973, this 22 year old practice was suddenly bidden goodbye by the Government within few hours of the delivery of the judgement in the Fundamental Rights Case of Keshavanand Bharati Vs State of Kerala, AIR 1973 SC 461. Justice A.N. Ray was appointed as the Chief Justice of India superceding three of his senior colleagues, Justices, Shetal, Hegde and Grover who later on resigned from the Supreme Court of India. The transfer of the judges of the higher judiciary also affects the independence and functioning of the judiciary. The Constitution of India provides for the transfer of a judge from one High Court to another High Court. But there is no effective safeguard against the abuse of this power by the government. During the National Emergency on June 25, 1977, a list of 56 judges, to be transferred without their consent had been prepared, but in first instance 16 judges were transferred and the names of the other state judges on the list deliberately were looked in order to shake the never of judges of the High Courts. One of the judges so transferred was Mr. Justice S.H. Seth, of Gujarat High Court who with commendable courage, filed a writ petition against the Union of India and the Chief Justice of India (Justice A.N. Ray). This case is popularly known as Sankal Chand’s case. In this case, the Supreme Court by majority held that prior consent was not necessary to transfer a judge. However, Bhagwati (as was then) and Untawalia, JJ. Gave dissenting judgement stating that transfer without consent of the Judge impends the independence of judiciary.

 

Ayush Mandekar