Judicial independence: appointment, transfer and removal of judges

1. The guarantees in the text

• Tenure. Supreme Court judges hold office until sixty-five (Article 124(2)), High Court judges until sixty-two (Article 217(1)), and can be removed only by the process in Article 124(4).
• Salary and expenditure. Salaries cannot be varied to a judge’s disadvantage after appointment (Articles 125(2) and 221(2)), except in a financial emergency; Supreme Court expenses are charged on the Consolidated Fund (Article 146(3)).
• Insulation from debate and practice. Parliament cannot discuss a judge’s conduct except on a removal motion (Article 121); retired Supreme Court judges cannot plead before any court (Article 124(7)).
• Separation of the judiciary from the executive in the public services of the State is a directive principle (Article 50).

Hamilton, in The Federalist No. 78, called the judiciary the least dangerous branch because it has neither the sword nor the purse; its only security is independence. The Bangalore Principles of Judicial Conduct (2002) treat independence and impartiality as the first values of judicial office.

2. Appointments: from consultation to collegium

Articles 124(2) and 217(1) require the President to appoint judges “after consultation with” the Chief Justice of India and, for High Courts, the Governor and the Chief Justice of the High Court.

The NJAC would have had six members: the Chief Justice, two senior judges, the Law Minister and two eminent persons, any two of whom could veto a candidate. The majority held that the executive and lay members could defeat the judicial members, and that the Law Minister’s presence compromised independence because the government is the largest litigant. In a follow-up order (2015 INSC 285) the Court accepted that the collegium needed reform and left a revised Memorandum of Procedure to be settled with the government. The collegium began publishing its resolutions with reasons in 2017, but the government has in practice slowed appointments by sitting on recommendations, which shows that judicial primacy on paper does not end executive influence.

3. Transfer of judges

Article 222 lets the President transfer a High Court judge after consultation with the Chief Justice of India. The memory behind the cases is the Emergency, when sixteen High Court judges were transferred in 1976, widely seen as punishment for rulings against the government.

• Union of India v. Sankalchand Himatlal Sheth (1977): a judge can be transferred without consent, but only in the public interest and after effective consultation; a punitive transfer would be invalid.
• S.P. Gupta (1981) held transfers subject to the same executive primacy as appointments.
• K. Ashok Reddy v. Government of India, 1994 INSC 50: after the Second Judges case, the Chief Justice’s opinion is decisive in transfers, and judicial review is confined to whether that consultation took place. The practice of appointing High Court Chief Justices from outside the State rests on this.

4. Removal

Article 124(4) allows removal only for “proved misbehaviour or incapacity”, by an order of the President after an address by each House, supported by a majority of its total membership and two-thirds of those present and voting, in the same session. The Judges (Inquiry) Act 1968 fills in the procedure: a motion signed by at least 100 Lok Sabha or 50 Rajya Sabha members; admission by the Speaker or Chairman; a three-member committee (a Supreme Court judge, a High Court Chief Justice and a distinguished jurist); and the vote only if the committee finds the judge guilty.

• Sub-Committee on Judicial Accountability v. Union of India, 1991 INSC 273: a motion admitted in the Lok Sabha does not lapse on its dissolution; the inquiry stage is statutory and the parliamentary stage political.
• Sarojini Ramaswami v. Union of India, 1992 INSC 222: the judge is entitled to the committee’s report, but judicial review is available only after the President’s order, not in between.
• Practice: the motion against Justice V. Ramaswami failed in the Lok Sabha in 1993; Justice Soumitra Sen resigned in 2011 after the Rajya Sabha voted for removal; other judges have resigned when proceedings began; and in 2025 the Lok Sabha admitted a motion concerning a High Court judge and a committee was constituted under the Act. No judge has yet been removed.

5. Accountability short of removal

• C. Ravichandran Iyer v. Justice A.M. Bhattacharjee, 1995 INSC 537: bar associations cannot coerce a judge to resign; misconduct falling short of impeachable misbehaviour is for the Chief Justice to deal with. This led to the in-house procedure adopted by the full court in 1999, alongside the Restatement of Values of Judicial Life (1997).
• K. Veeraswami v. Union of India, 1991 INSC 163: judges are public servants under the anti-corruption law, but no case may be registered against a judge without consulting the Chief Justice of India.
• Central Public Information Officer, Supreme Court v. Subhash Chandra Agarwal, 2019 INSC 1233: the office of the Chief Justice is a public authority under the Right to Information Act, subject to protection of personal information and independence.
• The Judicial Standards and Accountability Bill 2010, which would have created a statutory complaints body, lapsed.

How this is examined

Essays: “judicial independence and the appointment of judges”; “the collegium system after the NJAC judgment”; “removal of judges: is impeachment workable?”. Short notes: the Judges cases, Article 222, the Judges (Inquiry) Act, in-house procedure. Use the table for appointments, one case each for transfer and removal, and the comparative paragraph.