APPOINTMENT, TRANSFER AND REMOVAL OF JUDGES

INTRODUCTION
In a political system based on constitutional government, the functions of rule making, rule
enforcement and rule interpretation are separated into the three institutions - the legislature, the
executive and the judiciary. A judiciary that is independent of and acting as a check on the
arbitrary exercise of legislative and executive power is an essential feature of a constitutional
government. The judiciary is also the final arbiter of what that Constitution itself means. In a
federal system, the judiciary also serves as a tribunal for the final determination of disputes
between the union and its constituent units. Given the tremendous importance of the role and
functions of the Supreme Court and the High Courts, various measures have been adopted to
ensure the independence of the judiciary.
The evolution of the contemporary judiciary in India can be traced to the colonial period. It
was with the Regulating Act of 1773 that the first Supreme Court came into existence in India.
Located at Calcutta (Kolkata), the Supreme Court consisted of Chief Justice and three judges
(subsequently it was reduced to two judges) appointed by the Crown, and it was made a King’s
court rather than a Company’s court. The court held jurisdiction over “his majesty’s subjects”
wherever the Supreme Courts were established. Supreme Courts were established in Madras
(Chennai) first and in Bombay (Mumbai) later. Judicial system during this period consisted of
two systems, the Supreme Courts in the Presidencies and the Sadr courts in the provinces.
While the former followed the English law and procedure, the latter followed regulation laws
and personal laws. Subsequently, these two systems were merged under the High Courts Act
of 1861. This Act replaced the Supreme Courts and the native courts (Sadar Dewani Adalat and
Sadr Nizamat Adalat) in the presidency towns of Calcutta, Bombay and Madras with High
Courts. The highest court of appeal, however, was the judicial committee of the Privy Council.
At this stage of development of the Indian legal system, we see the beginning of a new era in
the emergence of a unified court system. The Federal Court of India was established in Delhi
by the Act of 1935. It was to act as an intermediate appellant between the High Courts and the
Privy Council regarding matters involving the interpretation of the Indian constitution. In
addition to this appellate jurisdiction, the Federal Court had advisory as well as original
jurisdiction in certain other matters. This court continued to function until 26 January 1950, the
day independent India’s constitution was implemented.
The Supreme Court
Introduction
The entire judicature has been divided into three tiers. At the top there is a Supreme Court,
below it is the High Court and the lowest rank is occupied by session’s court.
The Supreme Court is the highest court of law. The Constitution says that the law declared by
the Supreme Court shall be binding on all small courts within the territory of India. Below the
Supreme Court, are the High Courts located in the states. Under each High Court there are
District Sessions Courts, Subordinate Courts and Courts of Minor Jurisdiction called Small
Cause Courts.

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Appointment of SC Judges
In order to understand the present ‘method’ use to appoint a person as a judge of the Supreme
Court, we need to divide the period as follow

1. procedure of appointment of Supreme Court judge before 99th amendment; &

2. procedure of appointment of Supreme Court judge after 99th amendment
3. current procedure of appointment of Supreme Court judge

Before 99th amendment of constitution article 124 (2) which governs the appointment of
Supreme Court judge states that “every judge of the Supreme Court shall be appointed by the
president by warrant under his hand and seal after consultation with such of the judges of the
Supreme Court and of High Court in the states as the President may deem necessary for the
purpose”.

Provided that in the case of appointment of a judge other than the Chief Justice, the Chief
Justice of India shall be consulted.

This means that under article 124 (2), in appointing other judges of the Supreme Court, the
president was bound to consult the Chief Justice of India as it may be clear by the words ‘shall
be consulted’. But in appointing the Chief Justice of India he was not bound to consult anyone
as the word ‘may’ used made it clear that it was not mandatory for the president to consult
anyone.

However, till 1973 the senior-most judge of the Supreme Court was appointed as the ‘Chief
Justice of India’. This practice had become a ‘convention’ and was followed by the president
without any exception. But this practice was suddenly broken by the government when Justice
A.N. Roy was made Chief Justice of India after superseding three senior judges of the Supreme
Court i.e. Justice Shelat, Justice Hegde and Justice Grover. After this decision of the
government, there went huge debate across the whole India that is there executive interference
prevailing in the matter of appointment of a judge of the Supreme Court?

This question will be better answered through three judges’ case studies.

In S.P. Gupta v. Union of India which is popularly known as judges transfer case I. The
Supreme Court after being agreed with its earlier decision was given in Sankalchand sheth’s
case held again that word ‘consultation’ meant ‘mere consultation of views’ and it does not
means ‘ concurrence of views’ and thus the President is not bound to act in accordance with
such consultation and has a right to take a contrary view.

This decision of the Supreme Court means that power of appointment of judges was “solely
and exclusively” vested in the central government and other constitutional functionaries had
merely a consultative role. Hence this case laid down the ‘executive supremacy’ in matters of
appointment of Supreme Court judges.

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Then came the Supreme Court Advocates on Record Association v. UOI: Judges transfer case
II: In this case, a nine-judge bench of the Supreme Court by a 7:2 majority overruled its earlier
judgement given in the judge’s Transfer case I and held that in the matter of appointment of
the judges of the Supreme Court and High Court, the Chief Justice of India should have
primacy. The appointment of Chief Justice of India shall be on the basis of seniority but the
greatest significance should be attached to the view of the Chief Justice of India formed after
taking into account the views of two senior-most judges of the Supreme Court. It, thus, reduces
to the minimum individual discretion of constitutional functionaries. So as to ensure that
neither political bias nor personal favouritism nor animosity should play any part in the
appointment of the Supreme Court judges. It is for this reason that the word ‘consultation’
instead of ‘concurrence’ was used in the constitution to indicate that the absolute discretion
was not given to anyone neither to executive head nor judicial head.

The majority held that no appointment of any judge to the Supreme Court can be made unless
it is in conformity with the opinion of the Chief Justice of India. This decision thus laid down
the judicial Supremacy in the matter of appointment of judges of the Supreme Court.

After this came, the Judges transferred case III which was not a case but a ‘presidential
reference’ raised by the president of India K.R. Narayana used his consultation power under
article 143. The President had sought the Supreme Court’s clarification on the ‘collegium
system’ as laid down in judges Transfer case II, following a controversy over the
recommendation by then Chief Justice of India M.M. Punchhi.

In which, the Court held that the ‘collegium system’ requires consultation of the plurality of
judges. The sole individual opinion of the Chief Justice of India does not constitute
‘consultation’ within the meaning of the said articles. It was held that under Article 124(2), the
Chief Justice of India should consult “a collegium of four senior-most judges of the Supreme
Court” and made it clear that if “two judges give an adverse opinion the Chief Justice should
not send the recommendation to the government”. The opinion of the collegium must be in
writing and the Chief Justice of India should send the recommendation to the President along
with his own recommendations.

The Court also held that the President can send back the recommendation of ‘collegium system’
but if again the same name is proposed by ‘collegium’, the president is bound to accept it.

This is how the ‘collegium system’ developed gradually on the basis of Precedence established
by three separate cases of the Supreme Court of India. The judges were appointed to the
Supreme Court according to this system.

But in 2014, after the constitution 99th amendment act which amended articles 124(2), 127 and
128 and also inserted article 129 A,124 B and 124 C changes were done in the procedure of
appointment of judges of Supreme Court let’s see what changes were brought by 99th
amendment of the constitution

Procedure after the 99th amendment of the Constitution

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After this amendment, under article 124(2), every judge of the Supreme Court shall be
appointed by the president by warrant under his hand and seal on the recommendation of the
National Judicial Appointment Commission referred to in article 124 A.

NJAC, as provided by Article 124 (A), consisted of

1. Chief Justice of India;

2. two other senior judges of the Supreme Court;
3. union law minister
4. 2 eminent people’ to be nominated by the committee consisting of the prime
minister, Chief Minister of India and the leader of opposition.
Thus, the 99th amendment act which brought NJAC held that the established wisdom of
appointment of judges can be shared with the political executive. This was a huge change in
the methodology used to appoint a Judge of the Supreme Court.

But thereafter, in Supreme Court Advocates on Record Association v. Union of India, the
Supreme Court struck down NJAC act as ‘unconstitutional and void’. The Court declared that
the ‘NJAC’ act altered the basic features of the constitution as it impairs the ‘independence of
the judiciary’ and the ‘separation of powers’ by conferring arbitrary and uncharted powers on
various authorities under the statute. Therefore, the amendment cannot be sustained. As a result
of this discussion, the position as it stood prior to the constitution 99th amendment act i.e.
‘collegium system’ got revived

The current procedure of appointment of Supreme Court judges

In Supreme Court Advocates on Record Association v. Union of India, the Court held that the
‘collegium system’ as it existed before NJAC, would again become operative. But the Court
also ordered for the introduction of appropriate measures in order to improve the 21 years old
‘collegium system’ resultantly the memorandum of the procedure is brought into working i.e
now ‘collegium system’ will work as per ‘MOP’.

1. The MOP may indicate eligibility criteria such as the minimum age
2. in order to bring transparency in the appointment process, the appointment
procedure of judges as detailed in MOP ought to be made available on the website
of the concerned Court
3. The MOP may provide for the establishment of the secretariat for better
management of’ collegium system’
4. The MOP may provide for an appropriate mechanism to deal with complaints
against anyone who is being considered for appointment as a judge
These were the broad suggestions that were given by the Court to enhance the ‘collegium
system’ Till date, this mechanism is being followed to appoint judges of the Supreme Court.

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Appointment of High Court Judges

Introduction

The constitution provides for a High Court at the apex of the State judiciary. Chapter V of Part
VI of the Constitution of India contains provisions regarding the organisation and functions of
the High Court. By the provision of Article 125 which says “there shall be a High Court for
each state”, every state in India has a High Court and these courts have a constitutional status.

The parliament has the power to establish a common High Court for two or more states. For
instance, Punjab and Haryana have a common High Court. Similarly, there is one High Court
for Assam, Nagaland, Meghalaya, Manipur and Tripura.

In case of Union Territories, the Parliament may by law extend the jurisdiction of a High Court
to, or exclude the jurisdiction of a High Court from any Union Territory, or create a High Court
for a Union Territory. Thus, Delhi, a Union Territory, has a separate High Court of its own
while, the Madras High Court has jurisdiction over Pondicherry, the Kerala High Court over
Lakshadweep, the Mumbai High Court over Dadra and Nagar Haveli, the Kolkota High Court
over Andaman and Nicobar Islands, the Punjab Haryana High Court over Chandhigarh.

Appointment

Unlike the Supreme Court, there is no minimum number of judges for the High Court. The
President, from time to time will fix the number of judges in each High Court. The Chief Justice
of the High Court is appointed by the President of India in consultation with the Chief Justice
of India and the Governor of the State, which in actual terms mean the real executive of the
State. In appointing the judges, the President is required to consult the Chief Justice of the High
Court. The Constitution also provides for the appointment of additional judges to cope with the
work. However, these appointments are temporary not exceeding two years period.

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,

 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.

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Procedure

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

TRANSFER OF JUDGES IN INDIA

In India, the Transfer of Judges undergoes a long process, where the “Chief justice” makes the
final decision in which state and at which “High court” the particular judge would be
transferred. However, after making the final decision, the responsibility is handed over to the
“President” who advocates the transfer procedure of that particular judge. However, various
judges have opined that the exact parameters and reasons of the transferring that triggers this
transfer procedure of “high court judges”, are not clear enough. In addition, after getting the
approval from the “Central Government”, the existing “Collegium” takes the transfer decision
under its hand. Moreover, a judge goes through a wide range of constitutional laws and
procedures and hands over the case to another judge.

During the transfer procedure of Judges, a prior consultation has to be performed with the
“chief justice of India ”, and after that, the President transfers the judge from one court to
another. However, as per article 222, for the judge, there is a provision regarding transferring
to one high court from another. Although the president gets the authority to transfer the judge,
however, the main decision of transfer has been made by the “chief justice” of India. In Indian
constitutional history, various transfer cases of judges have been present. One example is the
transfer of “Jayant Patel”, who on 16th February 2016, was transferred from Gujarat to
Karnataka after serving 10 years as “chief justice” of Gujarat.

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Reason for transferring
Considering the fact related to the transfer of judges one thing comes under importance, for
which reason, this attempt has been taken? It has been observed that to implement a fair and
effective justice all over India, the decision of transfer of judges has been taken based on the
public concern. However, before the allocation of transfer orders, a meeting has been
organized, under which either “chief justice” or other collegium’s members rise the topic of
transfer of a specific judge. Based on this transfer proposal, voting has been performed which
determines at which court that particular judge would be transferred.

Transfer Procedure – High Curt Judges

The transfer of the high court judges has been enabled by the “Quasi Federation” and
“Cooperative federation”, in the guidance of “Article 222’. However, no particular reasons
behind the transfer of specific High court judges have been determined. It has been observed
that previously when the transfer procedure was controlled by the “Union of India”, showed a
lower rate of transfer of high court judges. Nevertheless, the high court judges have been
experiencing frequent transfer issues, after the involvement of “Judicial Collegium”.
Based on these issues, an example is present, where a total number of 16 high court judges
were transferred in on an emergency basis, by which the liberty of judiciary was diminished by
the Indian government. In addition, the transfer has been attempted if any particular judge
shows disintegration in responsibilities. However, it is necessary to show effective evidence
based on the severity of the complaints, and after that transfer would be justified. On the other
hand, many judges have thought that, before making any final transfer decision, an opportunity
of explaining the concern from the standpoint of the judge should have been given to prove the
complaint groundless.

Conclusion
It has been concluded that, in India, the transfer of high judges has been executed based on
“Article 222” under the supervision of “Chief justice” by the President. Although the clear
parameter of transfer of high court judges has not been determined, the transfer has been
performed to secure the constitution and justice. However, during the transfer of cases from
state to state and from one high court to another the “chief justice” of the “Supreme court”
holds this authority.

REMOVAL OF JUDGES

A judge may be removed from office through a motion adopted by Parliament on grounds of
‘proven misbehaviour or incapacity’. While the Constitution does not use the word
‘impeachment’, it is colloquially used to refer to the proceedings under Article 124 (for the
removal of a Supreme Court judge) and Article 218 (for the removal of a High Court judge).

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The Constitution provides that a judge can be removed only by an order of the President, based
on a motion passed by both Houses of Parliament. The procedure for removal of judges is
elaborated in the Judges Inquiry Act, 1968. The Act sets out the following steps for removal
from office:

 Under the Act, an impeachment motion may originate in either House of Parliament.
To initiate proceedings: (i) at least 100 members of Lok Sabha may give a signed notice
to the Speaker, or (ii) at least 50 members of Rajya Sabha may give a signed notice to
the Chairman. The Speaker or Chairman may consult individuals and examine relevant
material related to the notice. Based on this, he or she may decide to either admit the
motion or refuse to admit it.

 If the motion is admitted, the Speaker or Chairman (who receives it) will constitute a
three-member committee to investigate the complaint. It will comprise: (i) a Supreme
Court judge; (ii) Chief Justice of a High Court; and (iii) a distinguished jurist. The
committee will frame charges based on which the investigation will be conducted. A
copy of the charges will be forwarded to the judge who can present a written defence.

 After concluding its investigation, the Committee will submit its report to the Speaker
or Chairman, who will then lay the report before the relevant House of Parliament. If
the report records a finding of misbehaviour or incapacity, the motion for removal will
be taken up for consideration and debated.

 The motion for removal is required to be adopted by each House of Parliament by: (i)
a majority of the total membership of that House; and (ii) a majority of at least two-
thirds of the members of that House present and voting. If the motion is adopted by this
majority, the motion will be sent to the other House for adoption.

 Once the motion is adopted in both Houses, it is sent to the President, who will issue
an order for the removal of the judge.

APPOINTMENT OF JUDGES IN THE SUBORDINATE COURTS

Introduction
Under the High Court, there is a hierarchy of courts which are referred to in the Indian
constitution as subordinate courts. Since these courts have come into existence because of
enactments by the state government, their nomenclature and designation differ from state to
state. However, broadly in terms of organisational structure there is uniformity.
The state is divided into districts and each district has a district court which has an appellant
jurisdiction in the district. Under the district courts, there are the lower courts such as the
Additional District Court, Sub-Court, Munsiff Magistrate Court, Court of Special Judicial
Magistrate of the II Class, Court of Special Judicial Magistrate of I Class, Court of Special
Munsiff Magistrate for Factories Act and Labour Laws, etc. At the bottom of the hierarchy of
Subordinate Courts are the Panchayat Courts (Nyaya Panchayat, Gram Panchayat, Panchayat

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Adalat etc). These are, however, not considered as courts under the purview of the criminal
court’s jurisdiction.
The principal function of the District Court is to hear appeals form the subordinate courts.
However, the courts can also take cognisance of original matters under special status for
instance, the Indian Succession Act, the Guardian Act and Wards Act and Land Acquisition
Act.
The Constitution ensures independence of subordinate judiciary. Appointments to the District
Courts are made by the Governor in consultation with the High Court. A person to be eligible
for appointment should be either an advocate or a pleader of seven years standing, or an officer
in the service of the Union or the State. Appointment of persons other than the District Judges
to the judicial service of a State is made by the Governor in accordance with the rules made by
him in that behalf after consultation with the High Court and the State Public Service
Commission.
The High Court exercises control over the District Courts and the courts subordinate to them,
in matters as posting, promotions and granting of leave to all persons belonging to the State
judicial service.

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.

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