ABSTRACT

The framers of India’s written Constitution wisely incorporated checks and

balances to bring out the harmonious balance in the power and
responsibilities of the three wings of the Government i.e. the Executive, the
Legislature and the Judiciary. They already knew that the absence of such a
balance or even the perversity would render effective governance
impossibility. The individuals especially look up to the Judiciary to keep up and
safeguard the equilibrium by its interpretation of various laws and decisions
on the legitimateness and lawfulness of the exercise of their functions by
various authorities, in cases preceding it.

This research paper work deals with appointment, removal, and transfer of
the Judges of the superior Judiciary in India. In our nation, the judiciary is the
primary cornerstone of democracy, assisting in the efficient operation of
democracy. Judges are the most visible members of the legal system. Judges
must be efficient in order for the judiciary to be truly effective. While drafting
the Indian Constitution, the Founders emphasized the importance of an
autonomous justice system.

As a result, it is critical to ensure that judges are appointed in a proper and

non-biased manner.
 TABLE OF CONTENTS
S.NO CONTENTS PAG.NO

1. Introduction
2. Appointment of judges
2.1 Constitutional Provisions

2.1.1 Appointment of judges in District courts

2.1.2 Appointment of Judges in the High Courts

2.2.3 Appointment of Judges in the Supreme Court

3. Transfer of Judges
3.1 Constitutional Provisions

4. Landmark Judgments and evolution of National Judicial

Appointments Commission

4.1 Case 1: S.P. Gupta v. Union of India AIR 1982 SC 149 (1st judge’s case)

4.2 Case 2: Supreme Court Advocates on Record Association v. Union of India

(1993) 4 SCC 441 (2nd judges case)

4.3 Case 3: Re Presidential Reference AIR 1999 SC 1 (3rd judges case)

4.4 Evolution of National Judicial Appointments Commission

4.5 Case 4: Supreme Court Advocates-on-record Association & Anr. vs. Union
of India (2016) 5 SCC 1 (4th judges case)

5 Removal of Judges
5.1 Constitutional provisions

5.2 Impeachment

5.3 Procedure for checking deviant behavior of judges

5.4 Past experiences

6. Conclusion
7. Bibliography
1. Introduction
“Judges have, of course, the power, though not the right, to ignore the mandate of a statute, and render judgment
in despite of it. They have the power, though not the right, to travel beyond the walls of the interstices, the
bounds set to judicial innovation by precedent and custom. None the less, by the abuse of power, they violate the
law”

It is also worthwhile to mention here that the judiciary in India has performed really well over the last seven
decades and has contributed significantly to the advancement of public good and good governance. It has
succeeded in preserving and protecting the Fundamental Rights of the citizens and vulnerable groups of citizens
All this has become possible because of many a strong, independent and learned judges, of whom any nation
could be proud of. On the other hand, courts have not been always infallible. They have made mistakes on their
part as well.

Surely judiciary itself has been managing every one of these issues which has ultimately led to the judiciary
practically taking over the function of appointing and transferring the members of the judiciary. The question of
expulsion for 'proved misconduct and of measures to check deviant behavior not amounting to 'misbehavior' of
judges of the High Courts and the Supreme Court is equally a significant viewpoint. Judiciary is one of the three
hands of the State. Though the polity is dual under the Constitution of India the judiciary is integrated which can
interpret and adjudicate both upon the Central and State laws. Hence, the structure of the judiciary is pyramidical
in nature. Most of the States in our country have a High Court of their own. Though some states also have a
common High Court. Further talking about the legal aspect, Article 124 of the Constitution of India talks about the
appointment of Judges of the Supreme Court and their removal. Articles 125 to 129 talk about certain incidental
matters. The appointment and removal of the Judges of the High Courts are governed by Article 217 of the
Constitution. Article 218 to 221 and 223 to 224A talk about certain matters incidental thereto. Article 222
mentions for transfer of Judges from one High Court to another in India. The power to appoint a judge vests in the
hands of the President.

The main concern in this regard has been that while in the matter of appointment, one can allow a role for the
executive, no such role can be allowed in the matter of removal, transfer or in case of remedies for misbehavior. In
all such issues it is the judgment of the peers that is given due acknowledgement. Main concern has been to deal
with and solve instances of misbehavior among members of the judiciary to safeguard the fair name of judiciary
and its independence. Though a few unworthy elements here and there are destroying the image of the judiciary.
It has to be checked and rectified. For judiciary, its reputation is of utmost importance; if that is tarnished, nothing
remains. That’s why it is equally important to create mechanisms which serve to enhance the image and
effectiveness of our superior Judiciary. It is important to make reference here that during the whole of my
research work; I have accentuated the significance of an independent judiciary. Since it is an independent judiciary
which can administer justice to all the persons of its territorial locale without dread and favors. So I have analyzed
the topic very well by keeping in mind the foremost importance of an independent judiciary.
2. Appointment of judges
(2.1).Constitutional Provisions
(2.1.1)Appointment of judges in District courts
Qualifications:
Article 233 of the Indian Constitution deals with the appointment of District Judges. According to this article, there
are certain qualifications for a person to be appointed as a District Judge, they are:

 The person has to be in practice as an advocate or pleader for seven years or more;
 The person should not be in working in any other services of the Union or the State;
 The person has to be recommended by the High Court for employment.

Procedure for appointment:

There are various procedures to be followed before the appointment of District Judges. According to Article 233,
the appointment can be done only after consulting the Governor of the State and also the Judges of the High Court
that is exercising jurisdiction in the State. Article 235 of the Indian Constitution provides powers to the High Courts
to have control over the persons in the judicial service in the district court and other subordinate courts. Article
233-A validates the appointment of Judges in the district court that was made before the commencement of the
Constitution (Twentieth Amendment) Act, 1966 and they are held to be valid even though they are not in
accordance with the provisions of Article 233 and Article 235.

(2.1.2)Appointment of Judges in the High Courts

Qualifications:
There are certain qualifications which have to be fulfilled in order to appoint a person as a judge in the High
Courts. The qualifications regarding the appointment are provided in Article 217. According to the Article, they
are:

 The person appointed must be a citizen of India;

 The person appointed should have held a judicial office in the territory of India for at least ten years;
 The person appointed should have been an advocate in the High Court for at least ten years.

Procedure for appointment:

Article 217 of the Indian Constitution provides the procedure regarding the appointment of judges in the High
Courts. According to this Article,

 The judges of the High Courts can be appointed only by the warrant of the President and his seal;
 The appointment can be done only after consulting the Chief Justice of India and the Governor of the
State;
 The appointment of Judges other than the Chief Justice can be done after consulting the Chief Justice of
the High Court;
 The provisions under this article must be followed even while appointing the Additional Judges according
to Article 224.
  The person can hold the office as a judge until he is sixty-two years old;
 The consultation must be very effective, that is all the necessary information about the person being
recommended must be revealed and no information should be hidden in order to facilitate the
appointment;
 The Judges appointed must take an oath before the Governor of the State according to Article 219. The
oath must be according to the form that is provided for the purpose in the Third Schedule.

Salary for the Judges appointed:

Article 221 of the Indian Constitution provides various provisions regarding the salaries of High Court Judges. The
salaries shall be determined by the Parliament by law and until the provision on the behalf is made, the salaries
provided in the Second schedule must be followed. The article also says that the judges are entitled to receive
pension and allowances which is decided by the Parliament and it varies from time to time.

Procedure for appointment of additional and acting judges:

The appointment of additional judges is governed by Article 224 of the Indian Constitution. The President has the
power to appoint additional judges. The State Government should obtain the permission and sanction of Central
Government in order to create a post for additional judges and for appointing additional judges. Article 224 also
deals with the appointment of acting judges. They are appointed for a period of three months. The members of
the bar are not preferred for the appointment.

(2.1.3)Appointment of Judges in the Supreme Court

Qualification:
Article 124 of the Indian Constitution provides various qualifications which have to be satisfied for the
appointment. The person who satisfies all these necessary qualifications is only recommended. They are:

 The recommended person must be a citizen of India;

 They should not be above 65 years of age;
 They must have been a judge of one or more High courts continuously for five years;
 They must have been an advocate in the high court for at least ten years;
 The recommended person must be a distinguished jurist in the opinion of the President.

Procedure for appointment:

 CHIEF JUSTICE OF INDIA :

 Appointment to the office of the Chief Justice of India should be of the senior most Judge of the Supreme
Court considered fit to hold the office. The Union Minister of Law, Justice and Company Affairs would, at the
appropriate time, seek the recommendation of the outgoing Chief Justice of India for the appointment of the
next Chief Justice of India.
1. Whenever there is any doubt about the fitness of the seniormost Judge to hold the office of the Chief Justice
of India, consultation with other Judges as envisaged in Article 124 (2) of the Constitution would be made for
appointment of the next Chief Justice of India.
2. After receipt of the recommendation of the Chief Justice of India, the Union Minister of Law, Justice and
Company Affairs will put up the recommendation to the Prime Minister who will advise the President in the
matter of appointment.

 JUDGES OF THE SUPREME COURT :

 Whenever a vacancy is expected to arise in the office of a Judge of the Supreme Court, the Chief Justice of
India will initiate proposal and forward his recommendation to the Union Minister of Law, Justice and
Company Affairs to fill up the vacancy.

1. The opinion of the Chief Justice of India for appointment of a Judge of the Supreme Court should be formed
in consultation with a collegium of the four senior most puisne Judges of the Supreme Court. If the successor
Chief Justice of India is not one of the four senior most puisne Judges, he would be made part of the
collegium as he should have a hand in selection of Judges who will function during his term as Chief Justice of
India.

2. The Chief Justice of India would ascertain the views of the senior most Judge in the Supreme Court, who hails
from the High Court from where the person recommended, comes, but if he does not have any knowledge of
his merits and demerits, the next senior most Judge in the Supreme Court from that High Court should be
consulted.

3. The requirement of consultation with a Judge of the Supreme Court would not be confined to that Judge only
who has that High Court as a parent High Court and, therefore, would not exclude Judges who have, on
transfer, occupied the office of a Judge or Chief Justice of that High Court.

4. The opinion of members of the collegium in respect of each of the recommendations as well as the senior
most Judge in the Supreme Court from the High Court, from which a prospective candidate comes, would be
made in writing and the Chief Justice of India, in all cases, must transmit his opinion as also the opinion of all
concerned to the Government of India as part of record. If the Chief Justice of India or the other members of
the Collegium elicit views, particularly those from the non-Judges, the consultation need not be in writing but
he, who elicits the opinion, should make a memorandum thereof and its substance in general terms which
should be conveyed to the Government of India.

5. After receipt of the final recommendation of the Chief Justice of India, the Union Minister of Law, Justice and
Company Affairs will put up the recommendations to the Prime Minister who will advise the President in the
matter of appointment.
 As soon as the appointment is approved, the Secretary to the Government of India in the Department of
Justice will inform the Chief Justice of India and obtain from the person selected a certificate of physical
fitness signed by a Civil Surgeon or a District Medical Officer. The Medical Certificate is to be obtained from
all persons selected for appointment whether they are at the time of appointment in the service of the State
or not. The certificate should be in the form annexed.
  As soon as the warrant of appointment is signed by the President, the Secretary to the Government of India
in the Department of Justice will announce the appointment and issue the necessary notification in the
Gazette of India.

Salary:
The salaries of the Supreme Court judges are determined according to Article 125 of the Indian Constitution. The
salary provided to the Supreme Court judges is high compared to the High Courts. The salary is determined by the
Parliament by law and if provisions are not made clear the salary mentioned in the second schedule must be
provided.

Appointment of acting Chief Justice and Ad Hoc judges:

Article 126 of the Indian Constitution deals with the appointment of acting Chief Justice. The President can appoint
other judges of this court as acting Chief Justice when the office of Chief Justice is vacant or they are unable to
perform their duties due to various issues like health issues. Article 127 deals with the appointment of Ad Hoc
judges. According to this Article, Ad Hoc judges can be appointed in various situations like when the quorum of the
Judges of the Supreme Court are not available to hold or continue any session of the Court, then it is the duty of
the Chief Justice to appoint Ad hoc judges with the consent of the President of India.

3. Transfer of Judges
(3.1).Constitutional Provisions
Article 222 of the Indian Constitution provides the transfer of Judges from one High Court to another. The same
procedure is also followed even for the transfer of Chief Justice. The President has the power to transfer the Judges
from one High Court to another. This transfer must be made only after consulting the Chief Justice. There is also a
provision for providing a compensatory allowance to the Judges who are transferred in addition to their salary.
(4).Landmark Judgments and evolution of
National Judicial Appointments Commission
(4.1) Case 1: S.P. Gupta v. Union of India AIR 1982 SC 149 (1st judges case)
Petitioner: S.P. Gupta

Respondents: Union of India

Bench: Justice P.N. Bhagwati, Justice A.C. Gupta ,Justice S.M. Fazal Ali, Justice V.D. Tulzapurkar, Justice
D.A. Desai, Justice R.S. Pathak,Justice F.S. Venkataramaiah

Facts:

The foregoing case dealt with a number of petitions involving important constitutional questions regarding the
appointment and transfer of judges and the independence of judiciary. One of the issues raised was regarding the
validity of Central Government orders on the non-appointment of two judges. To establish this claim, the
petitioners sought the disclosure of correspondence between the Law Minister, the Chief Justice of Delhi, and the
Chief Justice of India.

However, the state claimed privilege against disclosure of these documents under article 74(2) of the Indian
Constitution, which provides that the advice tendered by the Council of Ministers to the President cannot be
inquired into in any court, and section 123 of the Indian Evidence Act, which provides that evidence derived from
unpublished official records on state affairs cannot be given without the permission of the head of the concerned
department. Section 162 of the Evidence Act provides that a witness summoned to produce a document before a
court must do so, and the court will decide upon any objection to this

Issues involved in the case :

 The main issue, in this case, was the constitutional validity of the order of the Central Government on
non-appointments and transfer of judges in High Courts for a short term.

 The letter of disclosure of communication between the Minister of Law, the Chief Justice of the Delhi
High Court and the Chief Justice of India was also in question.

 The locus standi of the petitioners was also challenged.

 Another important issue was the independence of the judiciary and the procedure for the appointment
of judges in higher courts.

Judgment:

The majority decision by 5:2 in this case held that the non-extension of an additional judge, i.e., in this case, the
non-extension of Judge S.N. Kumar, was valid. On the one hand, Justice Bhagwati recommended a collegium in
order to recommend the names of candidates to the President for the appointment of judges in the Supreme
Court and High Courts, while on the other hand, Justice Pathak and Tulzapukar held that the opinion and advice of
the Chief Justice of India must be given importance and supremacy over the advice given by anyone else. While
explaining the meaning of the word ‘consultation,’ it was unanimously held that it means full and effective
consultation. The decisions of constitutional functionaries must be given after considering full and identical facts.
(4.2) Case 2: Supreme Court Advocates on Record Association v. Union of India(1993) 4
SCC 441 (2nd judges case)
Petitioner: Supreme Court Advocates on Record Association and Another

Respondent: Union of India

Bench: Justice S. Ratnavel Pandian, Justice A.M. Ahmadi, Justice Kuldip Singh, Justice J.S. Verma, Justice
M.M. Punchhi, Justice Yogeshwar Dayal, Justice G.N. Ray, Justice Dr. A.S. Anand, Justice S.P. Bharucha .

Facts:

In 1991, a 3 judge bench comprising of CJ, M. N. Venkatachalia, J. Ranganath Misra and M.M. Punchhi , in the case
of Subhash Sharma v. Union of India observed the appointment of judges is not an executive act . They opined
that the S. P. Gupta case pought to be reconsidered by a larger bench. Pursuant to the judgment, the Supreme
Court Advocate-on-Record Association( SCAORA) filed a PIL raising several issues regarding the appointment of
judges as well as filling up of vacancies in Supreme Court and High Court. A nine judge bench was constituted to
deal with the questions.

Issue:

 Whether the opinion of the Chief Justice holds primacy with regard to the appointment of judges to the
Supreme Court and High Court.
 If the fixation of the strength of judges in the High Courts are justiciable

Judgment:

In this case, the nine-judge Constitution Bench by a majority of 7 :2 overruled the decision in S P Gupta. In the S.
P, Gupta case, the court had held that the Central government has primacy in matters of appointment and transfer
of judges. In this case, the ruling was reversed, and the court also devised a specific procedure and guidelines that
ought to be followed while appointing the judges. It now held that “consultation” meant “concurrence”, and that
the CJI’s view enjoys primacy. The rationale behind the verdict was based in the fact the CJI would be best
equipped to know and assess the ‘worth’ of candidates. The judgment also specified that the opinion of the CJI
would be made after consulting with a body of senior most colleagues. This system was labelled as “the collegium
system “. The judgment also highlighted the necessity to make appointment decisions devoid of political influence.
It was observed by the court that unless there is a cogent reason to justify the decision, the order of seniority must
be maintained while making appointments to the Supreme Court. It added that although it was open to the
executive to ask the collegium to reconsider the matter if it had an objection to the name recommended, If, on
reconsideration, the collegium reiterated the recommendation, the executive was bound to make the
appointment. The importance of divesting the executive of absolute discretion was emphasized because such
control would affect the independence of judiciary adversely.

In fact, through this case, the court clearly stated that in the event of deadlock between the executive and
judiciary, the opinion of the CJI would hold more weight and thereby established a system under which judges are
appointed by an institution comprising judges.

(4.3)Case 3: Re Presidential Reference AIR 1999 SC 1 (3rd judges case)

Petitioner: IN THE SUPREME COURT OF INDIA (IN RE: APPOINTMENT & TRANSFER OF JUDGES)

Respondent: CIVIL ADVISORY JURISDICTION

Bench: Justice S.P.Bharucha ,Justice M.K.Mukherjee ,Justice S.B.Majumdar ,Justice Sujata.V.Manhoar , Justice
G.T.Nanavati , Justice S.Saghir Ahmad ,Justice K.VenkatswamiI ,Justice B.N.Kirpal ,Justice G.B.Pattanaik

Facts:

This case is the last case of the “Three Judges Cases”, which established the collegium system of High Courts and
Supreme Courts of India. An important point is that the collegium system in India is not in existence due to any
provision of constitution or any act of parliament, but due to the “Three Judges Cases”.

Questions in the Presidential Reference-

They were mainly related to three aspects of law: -

 Consultation between the Chief Justice of India and other judges in the matter of appointment of judges of High
court and Supreme Court; and the transfer of High Court judges.
 Judicial Review of transfer of judges.
 The relevance of seniority in making appointments to the Supreme Court.

Judgement:

Using his power under Article 143(1), the President made a reference to the Supreme Court looking for clarification
on certain aspects of law. Earlier in the First Judge case it was held that the Executive has primacy over Judiciary for
appointment of judges. In the Second Judge Case, it was held that the Chief Justice has the primacy in judicial
appointment matters, but he needs to consult two most senior judges of the Supreme Court.

In this case, the first question was about the appointment and transfer of judges. Through the interpretation of
Article 124(2), it was suggested that as the opinion of Chief Justice is of most importance, so it must be made with
consultation of the collegium, where each recommendation would be in writing. Here, it was said that even if two
of the other judges of the collegium are having opposite decision than Chief Justice, then the person would not be
appointed. It may so happen that the CJI is favoring the candidate of his choice; so even after having the primacy
over the process, the sole opinion of CJI cannot be considered.

Similarly, for the appointment of high court judges, the CJI should consult a collegium like group, consisting of
senior-most judges and Chief Justice of High Courts. This will result in the best outcome for the recommendation.
According to Article 216, every High Court will have a Chief Justice, so the CJI in consultation with other judges
should make recommendations to the President, so that he can appoint judges accordingly as mentioned in Article
217. The judge appointed thereafter shall be at power, until he retires or there is another acting/additional judge
appointed by the President through his powers under Article 224.

Next is the point of transfer of the judges of high courts. A decision regarding this will be binding on the
government, only if the CJI has consulted it with four senior puisne judges, along with the Chief Justices of the High
Court from and where the transfer is to be made. Then, the President through his power under Article 222, can
transfer a judge from one High Court to another.

The second reference was related to the judicial review of transfer of judges. As there is Judicial Review in case of
appointment, similarly there can be Judicial Review in case of transfer of judges but only to a limited extent. It was
said, in case the CJI transfers a judge without consultation with the senior most judges or Chief Justices of High
Courts, where the judge was and to the High court where he got transferred. Then, the transfer is judicially
reviewable. It means that if the CJI did not follow the procedure and norms made for transfer of judges then it calls
for judicial review of the transfer.
The final question was regarding the relevance of seniority in making appointments to the Supreme Court. This
should be considered of the outmost weightage while appointing/transferring a Chief Justice of High Courts to the
Supreme Court, because the future of the court depends majorly on the decisions made by the Chief Justice.

In Supreme Court if a judge is to be appointed, then the President is sent a list with the names of the meritorious
judges for recommendation. But if the Chief Justice of the Supreme Court is to be elected, then the senior-most
judge is made the CJI. It was also said that the “Strong Cogent reasons” must not be given for not making a judge
CJI based on seniority; rather the positive side on why he should be made the CJI should be recorded.

(4.4)Evolution of National Judicial Appointments Commission

Introduction:

The National Judicial Appointments Commission (NJAC) was a proposed body which would have been responsible
for the recruitment, appointment and transfer of judicial officers, legal officers and legal employees under the
government of India and in all state governments of India. The commission was established by amending the
Constitution of India through the 99th constitution amendment with the Constitution (Ninety-Ninth Amendment)
Act, 2014 or 99th Constitutional Amendment Act-2014 passed by the Lok Sabha on 13 August 2014 and by the
Rajya Sabha on 14 August 2014. The NJAC would have replaced the collegium system for the appointment of judges
as invoked by the Supreme court via judicial fiat by a new system. Along with the Constitution Amendment Act, the
National Judicial Appointments Commission Act, 2014, was also passed by the Parliament of India to regulate the
functions of the National Judicial Appointments Commission. The NJAC Bill and the Constitutional Amendment Bill,
was ratified by 16 of the state legislatures in India, and subsequently assented by the President of India Pranab
Mukherjee on 31 December 2014. The NJAC Act and the Constitutional Amendment Act came into force from 13
April 2015.

Composition: As per the amended provisions of the constitution, the Commission would have consisted of the
following six persons:

 Chief Justice Of India (Chairperson, ex officio)

 Two other of senior judges of the Supreme Court next to the Chief Justice of India - ex officio
 The Union Minister of Law and Justice, ex-officio
 Two eminent persons

These (two) eminent persons would have been nominated by a committee consisting of the
Chief Justice of India,
 Prime Minister of India, and
 Leader of Opposition in the Lok Sabha (or where there is no such Leader of Opposition, then, the Leader of
single largest Opposition Party in Lok Sabha), provided that of the two eminent persons, one person would be
from the Scheduled Caste and Scheduled Tribe or OBc or minority communities or a woman. The eminent
persons shall be nominated for a period of three years and shall not be eligible for re-nomination.

Functions of the Commission: As per the amended constitution, the functions of the Commission would
have included the following:

 Recommending persons for appointment as Chief Justice of India, Judges of the Supreme Court, Chief Justices
of High Courts and other Judges of High Courts.
 Recommending transfer of Chief Justices and other Judges of High Courts from one High Court to any other
High Court.
 Ensuring that the persons recommended are of ability, merit and other criteria mentioned in the regulations
related to the act.
Procedure for selection of Supreme Court judges:-
Chief Justice of India:
The Commission shall recommend the senior-most judge of the Supreme Court for appointment as Chief Justice of
India. This is provided he/she is considered fit to hold the office. However, this must be according to the knowledge
one possesses rather than the age.

Supreme Court judges:

The Commission shall recommend names of persons on the basis of their ability, merit and other criteria specified
in the regulations.The Commission shall not recommend a person for appointment if any two of its members do
not agree to such recommendation.

Procedure for selection of High Courts judges:-

Chief Justices of High Courts:
The Commission shall recommend a Judge of a High Court to be the Chief Justice of a High Court on the basis of
seniority across High Court judges. The ability, merit and other criteria of suitability as specified in the regulations
would also be considered.

Appointment of other High Court judges:

The Commission shall seek nominations from Chief Justice of the concerned High Court for appointments of High
Court Judges or forward a list of such names to the Chief Justice of the concerned High Courts for his/her views. In
both cases, the Chief Justice of the High Court shall consult two senior-most judges of that High Court and any
other judges and advocates as specified in the regulations. The Commission shall elicit the views of the Governor
and Chief Minister of the state before making recommendations. The Commission shall not recommend a person
for appointment if any two members of the Commission do not agree to such recommendation

Challenge to the constitutionality:

The validity of the constitutional amendment act and the NJAC Act were challenged by certain lawyers, lawyer
associations and groups before the Supreme Court of India through public interest litigation writ petitions. In a
collective order, on 16 October 2015 the Supreme Court by a majority of 4:1 struck down the NJAC Act, 2014 meant
to replace the two-decade old collegium system of appointing judges in the higher judiciary

(4.5)Case 4: Supreme Court Advocates-on-record Association & Anr. vs. Union of India

(2016) 5 SCC 1 (4th judges case)

Petitioner: Supreme Court Advocates on Record Association and Another

Respondent: Union of India

Bench: Justice Madan Lokur, Justice J.S. Khehar, Justice Adarsh Kumar Goel, Justice Kurian Joseph, Justice
Jasti Chelameshwar

Facts:

The constitutional validity of the NJAC Act and the 99th Amendment Act was challenged through this group of
petitions before a five Judge Constitution Bench. The NJAC was set up for selection, appointment, and transfer of
the judges to the higher judiciary to replace the prevailing collegium system under Articles 124(2) and 217(1) of the
Constitution. The NJAC included the Union Minister for Law and Justice and two eminent persons, besides the Chief
Justice of India, and next two senior most judges in the Supreme Court. The collegium, which the NJAC proposed to
supplant, included the Chief Justice of India and a forum of the four senior-most judges of the Supreme Court.
Issue:

 Whether the NJAC Act and the 99th Amendment Act were constitutionally valid.

Judgement:

On October 16, 2015, the substantial question of law involving the constitutional validity of the 99th Amendment in
the constitution i.e. the Constitution (99th Amendment) Act, 2014 and the National Judicial Appointment
Commission Act, 2014 were dealt by a constitutional bench of five judges consisting of Justice Jagdish Singh Khehar,
Justice Jasti Chelameshwar, Justice Madan B. Lokur, Justice Kurian Joseph and Justice Adarsh Kumar Goel. The
judgment was delivered in a ratio of 4:1 declaring the amendment unconstitutional in which Justice J.
Chelameshwar gave a dissenting opinion. According to Justice Jagdish S. Khehar, ‘primacy of Judiciary’ in the
Selection and Appointment of Judges is a core essential part of ‘Independency of Judiciary’ which is a constituent
part of the basic structure of the constitution. According to Justice Madan B. Lokur, the 99th Amendment and the
NJAC scheme are a ‘whole package’ which must be struck done as they are against the on-going nomenclature pre-
independence and postindependence that primacy of CJI’s opinion was to be taken into account while appointing
and selecting the judges of the upper Judiciary.. According to Justice Kurian Joseph, separation of powers is
significant feature and encroachment by the legislature or the executive on the powers of judiciary through the
99th Amendment and the NJAC Act, 2014 are unconstitutional as it involved direct participation of an executive
member or non-judicial members in the appointment process, which hampers the structural distribution of powers
and hence, dilutes the basic structure of the constitution. According to Justice Adarsh Kumar Goel, appointment
and selection of judges with a little involvement of executive wing along with the primacy of judiciary is the basic
structure of the constitution. In the absence of the limited role of executive, checks and balances on the separation
of powers, Rule of Law, Federalism and other parts of the basic structure will be hampered.

According to Justice J. Chelameshwar, (dissenting opinion) observed that although ‘Independence of Judiciary’ is
the basic structure of the constitution but the 99th Amendment does not abrogate the basic structure of the
Constitution as the primacy of opinion of the CJI is not the basic feature and claimed that no constitutional
functionary should be vested with any absolute power be it the CJI or the President of India (executive) in
appointing, choosing or transferring judge forms the basic structure of the constitution.

Going by the majority decision of 4:1 the Supreme Court of India declared14:
1) “The constitution (99th Amendment), 2014 is unconstitutional and void.
2) The National Judicial Appointment Commission Act, 2014 is unconstitutional and void.”
3) The ‘Collegium system’ for the selection and appointment of judges to the Supreme Court and Chief Justice/
Judges and transfer of Chief Justice/ Judges stands revived and is thus, operative.
4) Primacy of judiciary in the appointment of Judges under Article 124, 217 and 222 of the Indian Constitution
forms part of the independence of judiciary which is the core part of the basic structure of the constitution of India.
(5)REMOVAL OF JUDGES
(5.1) Constitutional provisions
Article 124 (4) and (5) and 217 (1) (b) and 218 of the Indian Constitution mention about the 'Removal' of a
Supreme Court or High Court judge on the ground of proven misbehavior or incapacity. Though the use of words
like "misbehavior" or "incapacity" have not been defined or clarified in the Constitution. It is left to the Parliament
only to apply its interpretation as to what it means in a particular case.

(Note: The procedure for removal of the Supreme Court judge is also guided by the Judges (Inquiry) Act, 1968 )

(5.2) Impeachment –
Notice of motion for removal of a judge:

Removal proceedings against a Supreme Court or a High Court judge can be initiated in any of the houses of
Parliament. For this:

1. A minimum of 100 members of Lok Sabha may give a signed notice to the speaker, or

2. A minimum of 50 members of Rajya Sabha may give a signed notice to the Chairman.

The speaker or chairman may consult individuals and examine relevant content related to notice and according to
that, he or she may decide to either admit or refuse to admit it.

Constitution of an Inquiry Committee:

After the motion is admitted, the Speaker of the Lok Sabha or Chairman of the Rajya Sabha will form an Inquiry
Committee as per Article 3(2) of the Judges (Inquiry) Act, 1968 to start investigating the complaint. It will consist of
the following members:

 A Supreme Court judge,

 A High Court Chief Justice, and

 A distinguished jurist, as per the opinion of the Speaker/Chairman.

If such notices have been admitted in both the Houses of Parliament, the Inquiry Committee will be formed
together by the Speaker and the Chairman of the respective houses. In this scenario, the notice that has been on a
later date will stand rejected. If such notices have been passed by both the Houses of Parliament on the same day,
the Inquiry Committee will not be formed.

Submission of the inquiry report:

After concluding its investigation, the Inquiry Committee will put down its findings in a formal report and submit it
to the Speaker or Chairman. If the report finds misbehaviour or incapacity which makes the judge guilty, the motion
for removal has to be put to vote in both The Lok Sabha and Rajya Sabha. As per Article 124(4) of the Constitution,
the motion is required to be adopted in each house by:

 A majority of the total membership of the House, and

 A majority of not less than two-thirds of members present and voting.

If the motion is adopted by this majority in one house, the motion will be sent to the other house.

Order by the President:

As per Article 124(4), after the motion is adopted in both the houses by the required majority, it is placed before
the President of India, who will issue an order for the removal of the judge.

(5.3) Procedure for checking deviant behavior of judges

According to the Indian Constitution, Article 124(4) provides that a Judge of the SC shall not be removed except by
the order of President passed by 2/3rd of the members of each house present and voting and supported by a
majority of the total membership. By virtue of Article 218, the clause in Article 124 applies equally to the Judges of
the High Courts also. As mentioned earlier that the meaning of deviant behaviour is not defined anywhere and left
to the discretion of the courts to decide and interpret accordingly. Indeed, this is not an easy question and involves
a high amount of uncertainty. But the things that constitutes ‘misbehaviour or deviant behaviour’ includes bribery,
misappropriation, commission of serious crimes or crimes involving moral turpitude.

(5.4)Past experiences
-In the V Ramaswami case of the late 1980s, inconsistencies were found in an audit done regarding purchases made
for the High Court. The Inquiry Committee instituted by the Lok Sabha had found him guilty going by the necessary
evidence but he escaped any consequences as the motion did not get enough votes. The party in power altogether
decided to abstain from voting on the motion. Existence of conflicting interests is evident from the fact that Kapil
Sibal had argued his case in front of the Supreme Court.

-In K Veeraswami v Union of India, the Supreme Court decided that prior written consent of the Chief Justice of
India is mandatory for any proceedings regarding the prosecution of a judge of a High Court or the Supreme Court
to be initiated in the Parliament. The Veeraswami case holds good on the judicial side as it gave an edge to the
judges.

-In Justice P.D. Dinakaran vs Hon’ble Judges Inquiry Committee, in 2011, it was alleged that P.D. Dinakaran, former
Chief Justice of Sikkim High Court, had accumulated disproportionate assets and was involved in land acquisitions in
Arakkonam (his hometown), exceeding the limit that was fixed by the Tamil Nadu Land Reforms. A motion was
admitted in the Rajya Sabha by its Chairman in December 2009 and met with success to the extent of the
constitution of an Inquiry Committee, seeking his removal on the charges of corruption and abuse of his office.
However, before the proceedings could be completed in one House, he tendered his resignation on grounds of lack
of confidence and faith in the three-member Inquiry Committee probing the charges against him and thus, the
removal was halted. He managed to get post-retirement benefits even before the proceedings could be completed
and the allegations against him could be proved.

-In 2018, an impeachment motion signed by 71 MPs of the Rajya Sabha was passed against the then Chief Justice of
India, Dipak Misra, accusing him of five charges in the full text of the statement against him and also stated that the
CJI acted arbitrarily in allocating cases to brother judges as “master of roster”. However, the Chairman and Vice-
President M.Venkaiah Naidu rejected the motion as he did not find any misbehaviour on the judge’s part after
consulting with Constitutional experts, legal luminaries and Senior Parliament officials.
 (6)Conclusion
Thus in sum and substance, the accountability of any public institution is very significant for the establishment of
democracy itself. What we know since a long time is that in a democracy all the wings of the State are responsible
and answerable to the citizens at large. Hence, Judiciary is no exception to this. For smooth functioning of the
constitution, the independence of the Judiciary is a pre-requisite. Judicial independence doesn’t mean absence of
accountability because it ensures transparency as well10. As this research paper was about strengthening the
superior judiciary, the decision of the Judges’ Case has always kept the judiciary free from the executive and made
it self-competent. Along with this, the decision of Judicial Appointment Commission to give unfettered power to
the Parliament on Judicial Appointments has faced several criticism. Moreover, impeachment as a method to
make judiciary answerable is very uncertain and cumbersome. Also, according to the Judges Inquiry Act, 1968 an
investigative committee can be set up in the process of removal of judges and investigative can be carried out for
the misbehavior or incapacity of Supreme Court and High Court Judges. Till now, only Justice Ramaswami of the SC
has been investigated for misconduct.

To conclude this research paper, I would like to mention that the way corruption has polluted the air we breathe,
in the same way judiciary is no exception to it. In judiciary, often judges are involved in corrupt practices and enter
the domain of misbehavior which is beyond their permissible limits. These activities need to be checked and
addressed as soon as possible to make our judiciary transparent and effective again. Thus, it is concluded that free
and impartial appointment and removal of judges are very importance aspect at all level of judiciary. Hence, the
need of an hour is to ensure maximum independence to Judiciary with accountability.

(7.) Bibliography
Books:

 Shukla,V.N,Constitituion of India 13th edition, Eastern book company ,Lucknow.

 Dr.J.N. Pandey Constitutional Law of India 58th Edition(2021)
 M. Laxmikanth Indian Polity for UPSC (English)|7th Edition

Web Sources:

 https://doj.gov.in/document-category/latest-orders-of-appointment-transfer-etc/
 https://doj.gov.in/memorandum-of-procedure-of-appointment-of-supreme-court-judges/
 https://main.sci.gov.in/constitution

Articles:

 Sunil Deshta, Independence and Accountability of Judiciary in India: Problems and Social Science
 Removal of judges by Sushmita Choudhary