APPOINTMENT OF JUDGES OTHER THAN CJI

No Democracy can flourish without an independent judicial system free from fear or favour, a system
isolated from other branches of government. Without such independence prosperity and stability of
social order is unachievable. Our fathers realized the importance of such independence and hence
engraved it under Article 50 of the Constitution which obligates the State to take steps to
separate the judiciary from the executive. The form of oath prescribed by clause VIII, Third
Schedule of the Constitution for a Judge or a Chief Justice of the High Court requires him to affirm
that he will perform the duties of his office "without fear or favour, affection or ill will." Along with
it included several mechanism to ensure and protect the independence of Judiciary.

1. Judges can be removed only through cumbersome impeachment motion in the Parliament on
grounds of proven (not alleged) misbehaviour or incapacity.[Article 124(4) and 217(1)(b)]
2. The Parliament is barred from discussing their conduct except on motion of impeachment.
[Article 121 and 211]
3. The administrative expenses of the Court are charged to Consolidated fund of India or of
relevant state and not subject to discussion in Parliament.[Article 146(3) and Article 229(3)]
4. The services of judges cannot be altered to the detriment of their office
But these provisions cannot alone preserve judicial independence and integrity. The power to appoint
transfer and promote are equally important elements that influence appointments
Aricle 124(4) provides very Judge of the Supreme Court shall be appointed by the President after
consulting CJI and Judges of the Supreme Court and of the High Courts. Article 217 very Judge
of a High Court shall be appointed by the President by warrant under his hand and seal after
consultation with the Chief Justice of India, the Governor of the State, and, in the case of
appointment of a Judge other than the chief Justice, the chief Justice of the High court. Under
Article 222 The President is empowered after consultation with the Chief Justice of India, transfer
a Judge from one High Court to any other High Court.

The expression consultation (between CJI and the President and other judges of High Court and
Supreme Court) were deliberately used to ensure monopolization pf power with a single
authority. In the halcyon days of Indian Democracy i.e before the rise of Indian Matriarch as a
healthy practice the opinions of CJI and CJ of appropriate HC were considered most relevant in
appointment.
This changed drastically under Gandhi led Congress by supersession of three judges who had not
ruled in favour of Mrs. Gandhi. Democracy needed rescuing. This was further aggravated by
abuse of Article 222 to penalize independent judges by transferring them. During National
Emergency as many as 56 HC Judges were transferred. One such judge was Sankal Chand Seth
transferred from Gujrat H.C. to A.P. H.C. challenges the constitutional validity of president
notification in a writ before Gujrat H.C. The Gujrat H.C accepted the contention of petitioner
upon which the State moved to SC.

I.

Union Of India vs Sankal Chand Himatlal Sheth

In the apex Court Seervai FOR RESPONDENT argued The order was passed without effective
consultation with the Chief Justice of India and that independence of the judiciary is one of the
cardinal features of our Constitution, that the Constitution has made elaborate provisions to secure the
freedom of the judiciary from executive interference and that, if a High Court Judge is allowed to be
transferred without his consent, the independence of the judiciary will be gravely imperilled and

constitutional provisions, designed to protect that independence will be denuded of their meaning and
content.
The power to transfer a High Court Judge is conferred by the Constitution in public interest and not
for the purpose of providing the executive with a weapon to punish a Judge who does not toe its line
or who, for some reason or the other, has fallen from its grace.
After an effective consultation with the Chief Justice of India, it is open to the President to arrive at a
proper decision of the question whether a Judge should be transferred to another High Court because,
what the Constitution requires is consultation with the Chief Justice, not his concurrence with the
proposed transfer.
not a mere idle formality, illusory consultation (SEE NOTES) (AMIT SIR)
II.

SP Gupta vs Union of India

FACTS:On the aspect of primacy of opinion between the Chief Justices of India and a relevant High Court, the Courts
dictum operates to place both on a level playing field. However, the Court then proceeds to grant the Executive
a sort of unquestioned superiority in the matter of judicial appointments, reducing the CJs opinions to mere
formal consultations:
It is, therefore, clear that where there is difference of opinion amongst the constitutional functionaries in
regard to appointment of a Judge in a High Court, the opinion of none of the constitutional functionaries is
entitled to primacy but after considering the opinion of each of the constitutional functionaries and giving it due
weight, the Central Government is entitled to come to its own decision as to which opinion it should accept
where a Judge of the Supreme Court is to be appointed, the Chief Justice of India is required to be consulted,
but again it is not concurrence but only consultation and the Central Government is not bound to act in
accordance with the opinion of the Chief Justice of India. The ultimate power of appointment rests with the
Central Government and that is in accord with the constitutional practice prevailing in all democratic
countries.

*2 and *3 of Article
III. SC Advocate o Record vs uoi (second judges case)
Facts: see article and amit sir notes.