NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

XIV TRIMESTER

2010-11

PROFESSIONAL ETHICS

PROJECT ON:

Impeachment of judges: A theoretical stroke on judicial

accountability

Submitted to: Submitted by:

Prof. P.K. Shukla Nishit Agrawal

2006 B.A. LLB (Hons) 79

Impeachment of judges: A theoretical stroke on judicial accountability.

Table of Contents
Introduction...........................................................................................................................................3
Historical background of the Anglo-American concept.........................................................................4
Need for impeachment – Judicial accountability and judicial independence.........................................6
Norms of judicial independence............................................................................................................8
The positive and the negative aspects of independence.........................................................................9
Procedure for impeachment –Whether conducive and efficacious for the purpose................................9
And what shall we do with the errant judges.......................................................................................13
Conclusion...........................................................................................................................................14
Bibliography.........................................................................................................................................15

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Impeachment of judges: A theoretical stroke on judicial accountability.

Introduction
The basic notion of judicial independence is logically built into the very notion of
adjudication itself – impartiality and therefore a fair outcome, is rendered both more likely
and more visibly likely by the fact that the decision maker possess the appropriate degree of
autonomy. But autonomy is measured on a continuum than a simple dichotomy and most of
the time in most societies this autonomy has been limited and has often varied depending on
the kind of dispute involved. The Anglo-American concept of judicial independence was
invented in England in the eighteenth century and its basic elements have been exported
elsewhere to its immigrant successor nations such as America, India, Australia, Canada,
although the same is not widely copied elsewhere.
Martin Shapiro commented that the court is the manifestation of the social triad – an
institution to accommodate the resolution of disagreement.1His exposition of the phenomenon
depicted two actors in a social action find themselves in disagreement and unable to resolve
the same on their own yet needing some resolution in order to continue with normal
interaction, they turn to a third party to help them find an answer. Initially thus, the system
may be imagined as comprising a triple requirement of consent. First, both parties should
consent to a specific individual (or a group thereof) to act as the neutral third party; it cannot
be imposed by one of the parties: both have to consent to it. Second, the parties must agree to
the norms and standards against which the disagreement is to be resolved. Third, both parties
must consent to the outcome once it is announced. The last is the trickiest part of the process;
if it fails, the resolution has failed, but at the moment of choosing a winner, the third party
has implicitly cast the whole logic the triad in doubt by turning it into two against one. One
aspect of a successful outcome is persuasion – the third party persuades the loser that the
outcome is legitimate. This is again buttressed by a visible autonomy on the part of the third
party: the decision maker is not biased, not under the sway of another, not motivated by
anything save the desire to achieve the appropriate outcome.
Courts are the most formal form of the triad, and they are characterized by a triple shift that
transforms all three of the consent-driven elements of the simple model. The mutual free
choice of a third party is replaced by the arbitrary assignment of an officeholder, an official
appointed by government on the basis of appropriate formal credentials. The mutual free

1
See McCormick, Judicial Independence and Judicial Governance in the Provincial Courts,
Canadian Association of Provincial Court Judges, available at http://www.judges-
juges.ca/en/publications/JudgeBook.pdf.
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Impeachment of judges: A theoretical stroke on judicial accountability.

choice of relevant norms is replaced by the background of pre-existing social norms,

increasingly laws that have taken written form. The freedom at the end of the process to
accept or walk away from the proposed outcome is replaced by an officially imposed and
binding outcome. But the critical pivot remains the moment of decision, the critical challenge
is reconciling the loser to his defeat, and a critical element of the solution is the visible
autonomy of the decision maker.
Historical background of the Anglo-American concept.

The early English judiciary was an extension of the king’s authority2 or that they dispensed
the king’s justice and they served at the king’s pleasure, their appointment terminating with
the death of the king. The phrase that has been used to describe them – lions under the throne
which indicated that they posed no threat to the king from such a position; they roared not at,
but for, the throne. Though it is not that they had no such thing as autonomy, for they
exercised considerable discretion in the modelling of the common law and they were
appointed from the ranks of a relatively autonomous legal profession, they were however
kept on a very short leash when it came to anything that might encroach upon the monarchy
itself.3 The power they exercise was basically non- threatening to the status and interests of
the monarchy.
During the 17th century the monarchy was twice undermined, first by the English Civil War
which demonstrated that kings could be executed, whereafter by the Restoration (The
Glorious Revolution) which showed that royal authority was something that could be offered
conditionally. In the 18th century when the monarchy was on a steady retreat from
administrative functions, the judiciary too was extricated therefrom and placed in a sui
generis demarcation bereft of both parliamentary authority and transformation into a
bureaucratic one itself. In this twilight stature of the judiciary the concept of Anglo-American
judicial independence developed.
In 1701 the Act of Settlement established that judges could be removed only for cause and
only by Parliament, i.e. they no longer served during the king’s life or his pleasure, but till
their conduct breached expected norms of judicial behaviour on or off the bench. When they

2
The vestige of nomenclature is evidenced today. Judges sit in places called courts.
3
See Mary Volcansek, Judicial Misconduct :- A Cross-National Comparison (University
Press of Florida, 1996), p. 117.
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Impeachment of judges: A theoretical stroke on judicial accountability.

were to be removed such, it was not by a unilateral action of the king, but by resolution of
both Houses of Parliament.4
This step might be understood fully in analogy to the situation envisioned under the Indian
Constitution. The role of the 1701 Act is subject to misinterpretation on grounds that it
heaved the judiciary from under the direct control of the king, to place it in direct control of
the parliament. The real effect of the Act however was to preclude effective royal control
without placing it in direct parliamentary control. The Act of Settlement created an almost
magical balance- point; parliament could remove judges, but the process was so difficult, so
almost-but-not-quite-impossible, that it never did.5 The logical process was completed later in
the century with the guarantee of life tenure6 and with the guarantee of security of there
remained some unsolved issues with the interpretation thereof concerning whether the latter
implied guarantee as to a salary set by Parliament or whether it prevented reduction of salary
for the bench as a whole.7 Thus serving long terms with no effective mechanisms of
accountability, and freed from either the stick of reduced salary8 or the carrot of special
bonuses, the English judge had no institutional reason not to be as impartial as his
professional values required; or, no accountability.9
The objective of judicial independence is to make the judges as independent of the
government as possible, but should not undermine their dependence, for legitimacy’s sake, on
the legal profession itself. Judges must not only be drawn from the ranks of lawyers, but they
must be lawyers in good standing who enjoy a reputation among their peers which
effectively remains their reference group, and the people to whom they justify their
decisions, the community with which they identify and whose respect they value and pursue.

4
Academic scholars debate whether the Act of Succession replaced or simply added to the
more traditional remedies, such as the writ of scire facias or a criminal information filed in
the Court of King’s Bench at the suit of the attorney-general; Lederman reviews the
authorities, and concludes that even if these remedies remain their scope is extremely narrow.
See Lederman, “Judicial Independence I” at 787.
5
In England, no high court judge had been impeached from 1830-2000. Ibid, p. 127.
6
Ibid, p. 116.
7
Ibid, p. 118.
8
Though reduction of salary is an action proscribed by the Constitution, it is always up to
the Parliament to effectively reduce real salaries of judges, taking advantage of inflation.
See Ferejohn, “Dynamics of Judicial Independence: Independent Judges, Dependent
Judiciary”, Symposium on Judicial Independence,
University of Southern California, 1998. Also see Lederman, “Judicial Independence I”, p.
793.
9
For detailed discussion on the sources of accountability, see Ch. 2 of this treatise.
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Thus it is this dual endeavour to conform to the standard of expectations heaped upon them
that effectively keeps the individual judges in restraint from over-reaching of their powers.10
Need for impeachment – Judicial accountability and judicial independence.
Judicial independence can be explained in the normative and positive senses. Normatively,
judges should be autonomous moral agents who can be relied upon to carry out their public
duties irrespective of venal or ideological considerations. Independence in this sense is the
cherished and desired attribute of a judge’s character. But judges being human and their
verdicts affecting many, at least some of whom are influential and powerful figures,
including the state and from the state, so there should also be institutional protections to
shield them from threats and temptations that might come in their way.
Judicial independence in this sense is a feature of the institutional setting within which
judging takes place. It is also complex in the sense that it is not the objective needed to be
achieved, itself, but rather the method needed to be adopted to achieve that objective, the
latter being inviolability of rule of law or upholding of constitutional values etc.
Institutionally, judicial independence may be understood either narrowly as a set of
protections for judges or as a broader guarantee of the integrity of the judicial system.
Historically, attempts to secure judicial independence have often taken the narrower
perspective and focused on providing protections individual judges that presumably allow
them to decide cases free from threats of coercion or blandishments.
But why would textual provisions in the constitution, mere parchment barriers in the words of
Madison, be effective in protecting judges. One of the answers lies in the structural
protections afforded by the constitution. Political interference on judicial terrain such as
impeachment etc. or any legislative/executive action to adversely affect the judicial psyche
require of politicians high levels of coordination to overcome the checks and balance
imposed by the constitution. For example, judicial impeachments in America must be tried in
the Senate subject to a two-thirds voting rule and majorities of this size are hard to arrange
and sustain over any great length of time.11
In fact partly the answer to this lies in the complex inter-dependencies the constitution
created among the various branches of the state. This enabled each hereof to exercise its
assigned functions but required the same to enlist the cooperation of others for certain

McCormick, p. 8.
10

11
See for e.g., John Ferejohn, Dynamics of Judicial Independence: Independent Judges,
Dependent Judiciary.
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purposes. For example the President can refer any matter to the supreme court under Article
143, and there is always the provision for judicial review of legislative (and executive) acts.
The only real barriers to the frequent resort to impeachment or by necessary implication,
legislative intrusion into judicial territory, are therefore political. At least in politically
controversial cases impeachment remains a complicated, costly, and visible process that
exposes politicians to electoral danger and distracts them from politically more attractive
activities. For that reason it is usually difficult to mobilize opinion in the House sufficiently
large in number for the purpose.
Beyond these formal arrangements there is the more abstract but persistent threat of
politicians trying to mobilize popular sentiment against judges12 whereas judges are unable to
respond thereto without violating their obligation to refrain from discussing cases sub-
judice. But these by and large attacks against individual judges are not hurtful of the
institutional judicial system per se. Furthermore it is virtually impossible to affect or alter any
judicial decision once the same is reached.13 And attempts to modify final court decisions are
anyway subject to judicial review.14 But nonetheless the legislature can strip the judiciary’s
power or domain by nibbling away at court jurisdiction by removing cases to administrative
or other tribunals, altering rules of court procedure, limiting the number of judgeships or
failing to fill the ones that exist, up and failing to give full effect to court orders. 15
Politically, these events may not appear confrontational but their cumulative effect can
substantially erode the capacity of the judiciary to protect individual liberties by removing
such issues from courts. This system of independent judges within a dependent judiciary,
whatever its merits, sets up certain kinds of characteristic tensions within the constitutional
order. For example, individual judges are quite free to decide cases without fear of negative
personal consequences even if the predictable result of such decisions is quite negative for the
judiciary as a whole and indeed for the exercise of the judicial power. In a sense, politically
controversial decisions – whether they are internally well justified or not – are collective bads

12
Ibid, p. 7.
13
This was stated as the settled principle in People’s Union for Civil Liberties v. Union of
India, (2003) 4 SCC 399 where the supreme court held that the legislature whereas can
fundamentally alter the basis ofthe judgement either prospectively or retrospectively to render
a decision void, it cannot overrule or supercede a judgement of the court without lawfully
removing the defect or the infirmity pointed out by the court because it is obvious that the
legislature cannot trench on the judicial power vested in the courts.
14
14 People’s Union for Civil Liberties v. Union of India, (2003) 4 SCC 399.
15
Indeed, it was once commented by an American congressman, “Marshall has given his
orders, let’s see how he implements them”. See discussion on Marbury v. Madison in Gobind
Das, Supreme Court in Quest of Identity.
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from the point of the view the judiciary as a whole. Given the threat to all judges of
irresponsible, incompetent, or simply overly courageous individual judges it is probably no
surprise that the judiciary has found ways to mitigate the damage that any individual judge
can do, and to make sure that if a controversial step is to be taken, it is taken with adequate
judicial deliberation. In an important sense, the development of appellate hierarchy with
collegial courts at the appellate levels can be understood as strategies to ensure that no single
judge can, by his or her actions alone, inflict too much damage on the judiciary as a whole by
making aberrant or overly courageous judgements.
It is always possible that some judges will make mistakes or abuse the power of their office
but the availability of appeal and the collegial nature of courts, places, along with the other
disciplinary mechanisms, limits on how badly things can go wrong. But remedying mistakes
etc. ex post is an expensive proposition, both for the litigants and the system as a whole
besides being damaging to the rule of law because whereby it becomes infinitely more
prudent to limit judgeships or allow persons to be judges, to those who can be relied upon to
be competent and cautious not to expose their fellow judges to scathing political reaction.
While all of the judges cannot be guaranteed to be of strong mettle and appropriate character
and temperament, their selection process should be able to partially compensate therefor.
Ensuring that judicial process takes place in institutional circumstances that afford insulation
from pressure and external threat should be able to ameliorate the above pains to an extent.

Norms of judicial independence.

The institutional structure established by the constitution balances protections for individual
judges with a judiciary dependent on other branches of the government in order to operate its
constitutional functions. This arrangement may be construed as an institutional effort to
facilitate realization of the values viz., rule of law, constitutional government and democracy.
In the traditional sense judicial independence implies essentially independence from
governmental interference. This may be achieved by one or more of the following methods:-
Institutional:- Through the construction of rules – statutory or constitutional, attached with
sanctions, proscribing public officials or government from infringing on judicial territory.
Moral:- Through the development of a set of conventions or norms of self-restraint that
politicians somehow consider as binding on themselves – a kind of political morality without
the necessity for a formal enforcement mechanism.

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Electoral:- Through enforcement of formal rules and conventions politically, i.e. by the
people through the ballot box.
The positive and the negative aspects of independence.

Judicial independence comprises two kinds of freedom – freedom from doing something and
freedom to do something, the negative and the positive aspects thereof. The first concerns
certain protections for the judiciary from various forces seeking to subvert the same while
the latter encapsulate freedoms for the judiciary as an institution and judges as individual
participants of the judicial system to act in certain manners piously directed towards
upholding the rule of law, constitutionalism, democracy etc. Threats to judges and the
judiciary can be of various forms.16 These include physical compulsion, pecuniary
considerations, threat to career, and so on.

Procedure for impeachment –Whether conducive and efficacious for the

purpose.

The judiciary is in the news in ways that do not do it credit. Beginning with the defeated
Justice V. Ramaswamy impeachment in the early 1990s, the last decade portrays scandals.
These include the Bombay Pay-off Scandal of 1990, the controversy over the Bombay High
Court Chief Justice Bhattacharjee receiving large "foreign" royalties in 1995, controversies,
however founded or unfounded, over Justices Punchi and Anand - both Chief Justices of
India - and Justice Bharucha's declaration that 20 per cent of judges are corrupt. The year
2002 has been a bad year. In Punjab, High Court judges are accused of having received
favours from the Chairman of the Public Service Commission. In Rajasthan, the allegations
countenance a High Court judge and his Deputy Registrar soliciting sexual favours. In
Karnataka, allegations canvass compromising sexual conduct involving High Court judges.
In Patna, there are serious allegations of corrupting the legal process by lawyers and the
registry. Public confidence is shaken.
Recent history shows that where there is a will, constitutional amendments are possible. But,
there is a lack of political and judicial will to introduce changes. Today, judges collectively
and in judicial orders make all kinds of suggestions on their pay, salary, perks and other
things. But no consensus suggestion to interrogate judicial indiscipline emerges with credible
clarity. Individually India's Chief Justices provide evasive and contradictory answers.

16
Pamela S. Karlan, “The Two Concepts of Judicial Independence”, p. 2
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Furthermore, India needs a policy on embargoing post-retirement jobs for judges whilst
increasing their retiring age. The Public Commission procedure came to the fore in 1921 after
the Marconi scandal around 1918 because Parliament could not be wholly trusted. Parliament
needs to be more rigorous and credible - even though the nation was let down by the Bofors
Joint Committee which wrongly absolved the, then, Prime Minister and others in 1987.The
Indian judiciary has to confront its public image. India's judges are massively powerful. They
both compensate bad governance as well as fulfil the judicial quest for power. Judges may err
in their judgments. But, if confidence in the Judiciary abates, Indian governance is in peril.17
Constitutionally a judge may resign in writing to the president or may be removed in
accordance with the procedures stipulated in clause (4) of article 124, for a supreme court
judge and under article 217 the same rests applicable in case of a high court judge. The
president cannot remove a judge himself but only after an address by each House of the
parliament supported by a simple majority of the respective House and two-thirds voting rule
is complied with.18 A notice is given of a motion for presenting an address by hundred
members of the House of the people or fifty members of the council of states the speaker or
chairman as applicable, after consultation therewith may admit the motion in which event he
shall keep the motion pending and shall constitute within reasonable time a committee to
investigate into the allegations, comprised of three members – one whom should be the chief
justice or a judge of the supreme court, 19 the second, who should be a chief justice or a
judge of one of the high courts 20 and third, one who in the opinion of the speaker or chairman
is a distinguished jurist.21 Upon conclusion of investigation the committee shall submit its
report to the speaker or chairman, who convened the committee, or both if it was so
convened22 who shall cause it to be laid before the House or the Council as applicable or
both. The deliberations follow and if the House or Council finds the findings grave enough to
merit a removal, such opinion shall be presented to the president within the same
session for it to come to fruition.

17
Rajeev Dhawan, “Judicial Propriety and Tehelka”, The Hindu, 29/11/2002, available at
http://www.tehelka.com/home/20041009/new/march/7/ca030703judicial.htm, last accessed,
25/12/2005.
18
Article 124 (4).
19
Clause (2) (a).
20
Clause (2) (b).
21
Clause (2) (c).
22
s. 4 (2).
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An example might be supplied herewith for better comprehension of the issues raised
hereunder23 :-
Certain allegations of financial improprieties and irregularities were made against Justice V.
Ramaswami when he was the Chief Justice of the High Court of Punjab and Haryana. There
were certain audit reports concerning certain items of purchases and other expenditure. The
then Chief Justice of India Justice Sabyasachi Mukharji took note of the reports in this
behalf and of representations submitted to him in this behalf and advised Justice
Ramaswami to abstain from discharging judicial functions until those allegations were
cleared. Thereafter a Committee of three Judges was constituted by the then Chief Justice of
India to look into the matter and to advise him whether on the facts Justice Ramaswami
might be embarrassed in discharging judicial functions as a Judge of this Court. The
Committee tendered its advice to the Chief Justice. It noted that Justice Ramaswami had
declined to acknowledge the jurisdiction of any Committee to sit in judgment over his
conduct. The Committee accordingly abstained from an inquiry on the charges but on an
evaluation of the matter before it expressed the view that as long as the charges of
improper conduct involving moral turpitude were not established in the various
enquiries then pending the operation of the constitutional warrant appointing him a Judge
of the Court could not be interdicted. Thereafter in February 1991 108 Members of the
Lok Sabha presented a Motion to the Speaker of the 9th Lok Sabha for Address to the
President for the removal of the learned Judge under Art. 124(4) of the Constitution read
with the provisions of the Judges (Inquiry) Act 1968. On 12-3-1991 the Speaker of the
Lok Sabha in purported exercise of his powers under S. 3 of the said Act admitted the Motion
and constituted a Committee as aforesaid to investigate the grounds on which the removal
was prayed for. Soon after the decision of the Speaker to admit the Motion and constitute
a Committee to investigate the charges was made the term of the Ninth Lok Sabha came to
premature end upon its dissolution. The petitioners question the legality of the Speaker's
order and assert that at all events the Motion had lapsed with the dissolution of the
House. This contention is supported by the Union of India. They say that the effect of
dissolution of the Ninth Lok Sabha is to “pass a sponge across the parliamentary
slate” and all pending motions lapse. The motion for removal it was urged is no exception.24

23
Till date only one such action was brought before the House, in relation to Justice
Ramaswami, in pursuance of financial irregularities committed thereby as chief justice of the
high court of Punjab & Haryana.
24
Sub-committee on Judicial Accountability v. Union of India, AIR 1992 SC 320, para. 5,
quoted.
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After so many years of almost inaudible criticism about the conduct of judges, in 1992 a
resolution was passed in the chief justices conference held at New Delhi on September 18
and 19 where it was resolved to restate the pre-existing and universally accepted norms,
guidelines and conventions, reflecting the high values of judicial life to be followed. A
committee was appointed by the CJI to submit a draft of the restatement of values that should
guide their conduct whether in office or in their personal lives. The draft came up for
consideration and was approved by the full court of the Supreme Court and a resolution was
passed, adopting the Restatement as binding on the judges.
The Restatement empowers the CJI to take action against errant judges for violating its
provisions. It reads:-
 The judges of the high court should make a declaration to the chief justice of their
high court, assets standing in their names, standing in the names of their spouses and
other dependents. The chief justice shall file a similar declaration for purposes of
records. The declarations so made are treated as confidential.
 No judge shall contest for any position in a club or any other association. He can,
however stand for an elective post in any association or society connected with law.
 [No judge shall have] close association with members of the Bar, particularly who
practice in the same court. No member of his family whether a spouse son/s sons- in-
law or other close relative-being in the profession should appear before him or in the
court presided over by him or be associated with a case to be dealt with him.
 No judge should deal with a case in which his family or a close relation is interested
or concerned.
 A judge shall not enter into a public debate or express his views in public on political
matters or on matters pending or likely to arise for judicial determination.
 A judge should allow his judgments to speak for themselves, and he shall not
campaign their correctness in the media electronic or otherwise. He shall avoid media
interviews.
 A judge shall not accept hospitality or gifts excepting from his family, close relations
and friends.
 He shall not hear and decide cases of a company in which he holds shares unless he
discloses his interest and if no objection is raised he can proceed to decide the matter.
 A judge shall not speculate in shares and stocks.

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Impeachment of judges: A theoretical stroke on judicial accountability.

 A judge shall not engage in any trade or business either by himself or with any other
person.
 A judge shall not indulge in any activity of fund-raising for any purpose and this will
include his accepting contributions.
 A judge shall not seek any financial benefit in the form of a perquisite or privilege
attached to his office unless it is clearly available. In case of doubt the CJ has to
clarify.
 A judge should be conscious that he is constantly working under public gaze and he
shall not commit any acts of omission or commission unbecoming of the high office
he is holding and the public esteem in which it is held. That was why he is advised to
practice a degree of aloofness consistent with the dignity of office.25

And what shall we do with the errant judges.

This question remains unanswered. The institution is avoiding facing the issue on a very
misleading premise that debating these issues might bring down the prestige this institution
enjoys and disable it from a proper discharge of it constitutional obligations. An elected
appointee is only removable from office by impeachment as provided in Article 124 (4) of
the Constitution. A judge who is charged with misbehaviour has to be arraigned in each
house of parliament by an address in each house and the voting for removal is cumbersome
ensuring failure of voting recess. While parliament sits as the high court against these high
constitutional appointees, its decision is partisan, the party whip controlling the result.

25
V.R. Krishna Iyer (2001), Off the Bench, reported in K. G. Kannabiran, “Selection and
impeachment of judges”, PUCL Bulletin, March 2005, available on
http://www.pucl.org/Topics/Law/2005/judges- selection.htm, last accessed, 25/12/2005.
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Impeachment of judges: A theoretical stroke on judicial accountability.

Conclusion.

The following conclusions were evident from the above project:-

The independence of the judiciary, as opposed to that of the individual judges, is dependent
on the willingness of the popular branches to refrain from using their ample constitutional
powers to infringe on judicial authority, the enthusiasm wherefor manifests in the appellate
hierarchies capable of restraining if not the judges but judicial opinion within acceptable
bounds inoffensive to other branches or to avoid strong popular backlash therefor.
Electoral consideration and that of face-saving induce in politicians the desire to refrain from
indulging in overtly adventurous forays into judicial domain or by setting impeachment
standards too low. In other words if the legislative or executive action is unjustifiable to the
popular sentiment the odds against garnering popular favour thereby increases manifold.
Political unity, whether temporary, based on isolated issues or that of a majoritarian
government like the Congress at one time, pose sufficiently high levels of latent threat for the
judiciary’s independence or the judges’ security. Legislative sentiment may be cattled
together under a strong party allegiance or influence, which can effectively overcome the
excruciating standards imposed by the constitution with respect to impeachment motions in
the House.
Report of committees inquiring into conduct of judges should not be made public in the
interests of protection of the dignity of the institution. Notwithstanding the right to
information act exposure of such reports shall only serve to create biases and prejudices in
the minds of the people. There is a distinction between transparency and nudity.
The committee convened to look into the matter and a collegium constituted for the purpose
of deciding on the fate of the allegedly recalcitrant judge should be competent to adjudicate
whereafter the same shall be binding. Judges as well as others should press that the National
Judicial Commission be set up soon. The names it recommends for appointment should be
accepted without fail – unless the Executive has very strong evidence to suggest otherwise,
evidence and reasons that it must record in writing and communicate to both the Commission
and the Chief Justice of India. Pending the constitution of such a Commission, senior judges
have to ensure that the “consultation” that is mandated in regard to appointments and
transfers is real and effective consultation. That is why the Supreme Court deserves our
gratitude for having reversed its judgment in SP Gupta, the original judgment in the Transfer
of Judges case. For by that judgment the Supreme Court had handed the key to the robber.

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