Transfer of Judges

TRANSFER OF JUDGES: POLITICS
CONSTITUTIONAL LAW- II
CHANAKYA NATIONAL LAW UNIVERSITY
SUBMITTED BY: - MANISHA KUMARI Roll No. : - 232, CHANAKYA NATIONAL LAW UNIVERSITY SUBMITTED TO: - Mr. K.K. DWIVEDI

CONSTITUTIONAL LAW- II MANISHA KUMARI
Table of Contents
Table of Contents.................................................................................................. 2 ACKNOWLEDGEMENT........................................................................................ 3 RESEARCH METHODOLOGY............................................................................... 4 INTRODUCTION.................................................................................................. 5 TRANSFER OF JUDGES: WHERE DOES THE REAL POWER LIE?............................7 NATIONAL COMMISSION TO REVIEW THE WORKING OF THE CONSTITUTION ..................................................................................................................... 13 LAW COMMISSION REPORTS.........................................................................13 PROVISIONS REGARDING TRANSFER OF JUDGES IN OTHER JURISDICTIONS....14 CONCLUSION................................................................................................... 16 BIBLIOGRAPHY................................................................................................. 17
CHANAKYA NATIONAL LAW UNIVERSITY | PATNA
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ACKNOWLEDGEMENT
I take this opportunity to express my humble gratitude and personal regards to Mr. K.K. DWIVEDI for inspiring me and guiding me during the course of this project work and also for his cooperation and guidance from time to time during the course of this project work on the topic
I EXPRESS MY GRATITUDE TO THE FACULTY OF, CONSTITUTIONAL LAW - II FOR THE CONCEPTS GIVEN BY HIM IN THE SUBJECT WHICH HAS BEEN THE BASE FOR THIS SMALL PIECE OF WORK.
YOURS SINCERELY MANISHA KUMARI ROLL NO. 232
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RESEARCH METHODOLOGY
Aims and Objectives:
The aim of the project is to present a detailed study of the topic TRANSFER OF
JUDGES: POLITICS through decisions and suggestions and different writings

and articles.
Scope and Limitations: Though the topic TRANSFER OF JUDGES: POLITICS is an immense project and pages can be written over the topic but because of certain restrictions and limitations I was not able to deal with the topic in great detail.
Sources of Data: The following secondary sources of data have been used in the project Articles/Journals Books Websites
Method of Writing and Mode of Citation: The method of writing followed in the course of this research project is primarily analytical. The researcher has followed Uniform method of citation throughout the course of this research project.
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INTRODUCTION
The role of the judiciary in any country especially in a liberal democracy like India is of paramount importance. The judiciary is the final instrument of the legal order for maintenance of rights and duties of the ordinary population. Of the courts which comprise the judicial hierarchy, the higher judiciary which is there in the High Courts and the Supreme Court play a vital role not only because they are at the acme of the judicial hierarchy but also because of the wide and comprehensive jurisdiction which they possess. The judiciary is the custodian of the constitutional principles, which are essential for the maintenance of the rule of law. It is the vehicle of protection of a set of values, which are integral part of our social and political philosophy. Judges are the most visible actors in the administration of justice. Therefore, any realistic analysis of the administration of justice in the courts must also take in to account the totality of judges behaviour and their administrative roles. They may appear to be only minor aspects of the administration of justice but they are not trivial.1 Therefore, the issue of transfer and removal of judges is very important in our socio-political milieu. The constitution of India (Part V and Chapter IV) outlines the provisions about the establishment of the Supreme Court, as well as appointment and removal of the Judges by the President. Article 222 of the Constitution provides for the process of transfer of judges by the President of India in consultation with the Chief Justice of India. 2 The transfer Policy of the High Court judges was initiated, like family planning, during the emergency of June 1975. But unlike family planning it has grown in popularity with the Executive. This provisions, has been lauded as having much wisdom and merit, and it is as eloquent in its silence, as what it does.3 There is much controversy in several areas with regard to this provision, the matter of consensual and punitive transfers, and the consultation process are particularly interesting. The Supreme Court has also looked at the questions of transfer and made several pronouncements in this regard which are quite interesting. In this context, the process of removal of judges also requires an in depth study. Article 124 of our Constitution provides that a judge of the higher judiciary cannot be removed except by an order of the President passed after an address to both the houses of the Parliament, supported by a majority of the total membership of that house and by a majority of not less than two- thirds of each of the houses present and voting, has been presented to the
1 2
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58th Law Commission report, p.117. The Article reads as follows: (i) The President may after consultation with the Chief Justice of India, transfer a judge from one High Court to another. (ii) When a judge has been or is so transferred, he shall during the period which he serves, after the commencement of the Constitution Fifteenth Amendment Act, 1963,as a judge of the other High Court be entitled to receive compensatory allowance as may be determined by the Parliament by law, and until so determined, such compensatory allowance as the President may order. 3 F.S Nariman, The Presidents Page Seminar on Appointment of Judges, Indian Bar Association, 1999,p.9.

President, in the same session for such removal on proved grounds of misbehaviour and incapacity. This has been done in order to grant a security of tenure to the higher judiciary and stop the executive from meddling into judicial affairs. Such a mechanism will also allow the judges autonomy in their judicial decisions. However, both the aspects have come in for criticism from various quarters as cases of judicial misconduct and the corruption within the judiciary have increased. The project has been undertaken with a view to study and outline the intricacies of the system and suggest changes within it in order to remove the defects and make it more efficient. In order to achieve these stated objectives, a comparative analysis with the provisions in other democratic countries has also been done.
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TRANSFER OF JUDGES: WHERE DOES THE REAL POWER LIE?

The Constitution provides for transfer of a High Court judge after consultation with the chief Justice of India. Article 222 of the Constitution empowers the President of India, after consultation with the Chief Justice of India, to transfer a judge from one High Court to another High Court. However, in the fifties, this power was rarely resorted to. The suggestion that at least one-third of the High Court judges should be persons drawn from outside the State came from the States Reorganisation Commission and was endorsed by successive Law Commissions and the Administrative Reforms Commission. 4 Till the year 1976, no constitutional expert realised the seriousness of the provision, particularly after the Law Ministers assurance in 1963.5 But things changed after the advent of emergency. Many High Courts gave adverse orders against the Government of India in habeas corpus petitions protecting the fundamental rights of the citizens. As a result, transfer orders of 14 High Court judges were passed without their consent and forced the people to have a re-look at the provisions in Article 222 and attribute meaning to the provision. In Union of India v. S H Seth,6 the validity of a Presidential order transferring a judge of the Gujarat High Court was challenged on the grounds that it was done without the consent of the concerned Judge and without consultation of the Chief Justice of India. The order was also challenged on the grounds that it was passed in breach of the assurance given by the then law minister A K Sen in 1963 that High Court judges would not be transferred without their consent. The Supreme Court held that the consent of the judge concerned was not necessary. However, Justice Bhagwati and Justice Untwalia, in their minority judgments held that interpreted Article 222 (1) as embodying consent of the judge proposed to be transferred as a necessary condition for the exercise of the Presidential power under the Article. However, the Court in its unanimous opinion laid stress upon the independence of the judiciary being a vital ingredient of our legal system and that the threat of transfer at the whims and caprices of the executive constitutes a major threat upon that independence. Therefore, transfer of judges can only be made in public interest. Any transfer which is not in public interest can be challenged in the courts as ultra vires or without jurisdiction. Also, no transfer can be made without consultation with the Chief Justice of India. However, such consultation does not mean the concurrence. The next significant case which dealt with the issue of transfer of judges is S P Gupta v. Union of India7 (popularly referred to as the 1st Judges Case). Herein, the transfer
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P.P. Rao, Judicial Committee for Appointments and Transfers, Seminar on Appointment of Judges,Indian Bar Association, 1999, p.32. 5 A.K.Mishra, Presidential Power to Transfer the Judges: A Critique, Journal of Constitutional & Parliamentary Affairs, 2001, p.125. 6 (1977) 4 SCC 193. 7 AIR 1982 SC 149.

of Justice K B N Singh from Patna to the Madras High Court was sought to be challenged on the following grounds: 1. The transfer was made without the consent of the judge transferred. This meant that the majority decision on Sankal Chand case would have to be reconsidered. 2. There was no effective consultation between the President and The CJI with respect to the transfer. 3. The transfer was not justified by being in public interest; infact was by way of punishment and was vitiated by malafides. In this case, the Supreme Court while upholding the position in the Sankalchand Seth case regarding the consent of the judges sought to be transferred did bring in some other safeguards with regard to the transfer of judges. It held that judge could not be transferred by way of punishment and that the government must consider the personal difficulties of judges before issuing their transfer orders. It also reiterated the earlier position that the transfer of judges can only be carried out in the case of public interest. The Supreme Court also stated that the consultation as stipulated under Article 222 of the Constitution was mandatory. 8 However, the view taken by the Court was that the opinion of the Chief Justice of India did not have primacy over the opinion of the executive and that in the event of difference of opinion it was for the central government to decide whose opinion would be accepted. The Constitutional provisions in Article 222 again attracted attention in the year 1994 when transfers on a big scale were effected in 1994 to give effect to the policy of the Government of India, endorsed in the 1st Judges Case regarding the need of having 1/3rd judges in every High Court from outside. To give effect to such transfers, a Peers Committee was formed by the then CJI, M N Venkatachaliah and transfers of a good number of sitting and newly appointed judges have taken place. As these transfers were widely criticised on various counts, these were not ordered thereafter.9 However, these developments necessitated a re-look at the questions relating to transfer of judges. The stand taken by the Court in the 1st Judges Case was overruled in the case of Supreme Court Advocates on Record Association v. Union of India.10 Regarding the transfer of High Court judges and Chief Justices, it was held that the opinion of the Chief Justice of India should not have mere primacy, but would be determinative and that the consent of the transferred Judges/Chief Justice of high Courts was not required for transferring them from one High Court to another. It was also held that any transfer made on the recommendation of the Chief Justice of India was not to be deemed to be punitive, and such transfer was not justiciable on any ground. Thus, in a nutshell the Court in the 2nd Judges Case has completely sidelined the executive by going to the other extreme and
8 9
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AIR 1982 SC 149. Moolchand Sharma, Appointment & Selection of Judges, Seminar on Appointment of Judges, Indian Bar Association, 1999, p.143. 10 (1993) 4 SCC 441. (Commonly referred to as the 2nd Judges case)

conferring primacy on CJI in appointment provided he consulted two other judges and on transfer the Chief Justice of India has more than primacy as his view in this regard is determinative. This view was endorsed in the judgment of the Supreme Court in K Ashok Reddy v. Union of India.11 Herein, it was stated that a decision made by the collective exercise of several Judges at the apex level on objective criterion is an inbuilt check against arbitrariness and bias, indicating absence of need for judicial review on those grounds. This question again necessitated a clarification by the Supreme Court in the Presidential Reference in 1998. These questions were raised as doubts had arisen about the interpretation of the law laid down by the Supreme Court on the scope and modalities of the consultative process in the transfer of judges from one High Court to another as suggested by the Supreme Court in the 2nd Judges case. A nine-member bench of the Supreme Court held that the CJI must make a recommendation to transfer a Chief Justice of a High Court or a judge of a High Court in consultation with the four senior most puisne judges of the Supreme Court. The Bench further stated that the Chief Justice of India is not entitled to act in his individual capacity without consultation. The Bench also further stated that the transfer of puisne judges is judicially reviewable only to the extent that the recommendations made by the Chief Justice of India in this behalf has not been made in consultation with the four senior most judges of the Supreme Court. Thus, the judgment in the 3 rd Judges case builds on the judgment in the 2nd Judges case and proceeds to spell out its implication, prescribing even the minutes of the procedure. After going through the above cases, the following questions need to be considered: Whether it is necessary to obtain the consent of the judge sought to be transferred? What should be the nature and quantum of the consultation with the CJI regarding such transfers? Whether Article 222 should be interpreted as containing Policy transfers also? If so, with what additional safeguards? Can transfers be made as a mode of punishment of errant judges? Do the transfers have to be made in public interest?
Consent of Judges: This question was first debated in the case of Union of India v. S H Sheth12. In that case, it was contended that even though the word consent hadnt been used in article 222, it had to be read into the provision by necessary implication. It was asserted that since the transfer of a judge from one court to another virtually meant a fresh appointment, and since no appointment was made without the consent of the judge concerned, similarly in the case of transfers the consent of the judge concerned must be sought. It is also important to keep in mind that the judiciary is not in the nature of an All India Service, and transfers cannot be made arbitrarily and the whim of the executive. Despite all these contentions, the
11 12
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AIR 1994 SC 1207. AIR 1977 SC 2328.

majority did not import the element of consent in Article 222 (I). However, Justice Bhagwati and Justice Untwalia interpreted Article 222 (i) as embodying consent of the Judge proposed to be transferred as a necessary condition for the exercise of the Presidential power under Article 222. the majority relied on a literal interpretation of Article 222 and thus did not import consent into Article 222. In the Judges case too, all the Judges except Justice Bhagwati were not prepared to show any departure from the majority view in Sheths case so far as the importation of consent in Article 222 (i) was concerned. Justice Fazl Ali opined that by reading a requirement of consent in Article 222 the power of the President can be defeated or stalled by a simple act of the Judge in refusing to give his consent to the transfer. Article 222 was held by His Lordship as having been expressed in clear and , explicit, plain and unambiguous language admitting of no vagueness or ambiguity. He further added that reading the word consent into Article 222 would amount to imposing unnecessary restraints and conditions in the Article which are not there at all. Venkataramiah J., held that such a construction would virtually grant on an unwilling judge an immunity to act against the exercise of power by the President under Article 222 even though public interest may demand the transfer of the judge. Even subsequently, in the 2nd and the 3rd Judges case, the word consent has not been interpreted into Article 222. It is the belief of many learned scholars that withholding such consent from the judge sought to be transferred weakens the independence of the judiciary which is a guiding principle of our democratic polity. It is believed by many the executive may misuse its powers like it did in it heydays during the Emergency and transfer the higher judiciary like ordinary civil servants. Many fear that independent judges who do not pass favourable orders in favour of the government or worse still, pass adverse orders would be punished by the executive. However, it is the honest belief of the researcher that several other safeguards have been built into the system by the Supreme Court in the 2 nd & the 3rd Judges case which protects the judiciary. Firstly, transfers can only be made in public interest and secondly, even though the word consent has not been used, but the concurrence of the Chief Justice of India and the collegium has been made a pre-requisite before transferring any judge. It would be reasonably expected that the senior most judges would protect the interests of their fellow judges. Consultation under Article 222: In the Sankal Chand Case, the Court cast an absolute obligation on the President to consult the CJI , before any order of transfer can be given. The Court held that it was in the nature of a condition precedent. According to the court, the consultation should be full and effective and not just formal or unproductive. In this process the president must make available all the relevant data, on the basis of which the CJI can render his advice to the President. This position was later re-affirmed in the 1st Judges case wherein, it was held that the word consultation under Article 222 means that the advice of the CJI needs to be taken before any transfer order is taken and it does not mean that the power is taken away form the hands
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of the executive and placed with the judiciary. However, this position was radically altered in the 2nd & the 3rd Judges case wherein, it was held that the advice of the collegium of the senior most judges would have primacy over the opinion of the President. Thus, the word consultation has been sought to be meant as concurrence. Transfers in Public Interest: In the Sankal Chand case, the Supreme Court held that transfers could only be made for the promotion of public interest and not by way of punishment. It was also held that neither the President, nor the CJI has the power to punish a judge for misconduct. This can be done, only by the process of impeachment, the procedure for which is provided in article 124 (4). However, by subjecting judicial removals, to the legislative process, it has become very cumbersome, and an impeachment is very difficult to fall through, simply because it is difficult to get the requisite majority in the legislature. Thus often enough, transfers have been resorted to as a punitive measure According to Tulzapurkar J., in the same case, instances of transfers in public interest include, transfer of a judge for remedying the unsatisfactory working conditions obtaining in a High Court for reasons beyond the control of the Judge, or there may be a case where the particular judge because of his nature and temperament does nor get along with the other judges or the Chief Justice of the particular court. Even in the subsequent judgments in the 2nd and the 3rd Judges case, it has been asserted that transfers cannot be made other than in the better administration of justice in the country. However, with the proposal to have one third of judges of a High Court from outside the state in order to maintain the impartiality and the fact that the policy transfers have not been disallowed in the 2 nd & the 3rd Judges case, policy transfers have been allowed. It is reasonable to assume that the CJI will recommend a transfer only for better administration of justice in the country, or at the request of the concerned judge. However, as has been seen in the recent episode involving the judges of the High Court of Karnataka and Punjab & Haryana being transferred, it means that although the decision in the 2nd Judges case is sound but the ground reality is that it is being abused to a large extent. Care should be taken to ensure that there is difference between transfer for the purposes of punishment and transfer in general. However, very recently, the 67th Constitutional Amendment Bill was tabled before the parliament, with its purpose being to set up a National Judicial Commission for the appointment of Supreme Court and High Court judges and for the transfer of High Court judges, so as to obviate criticisms of arbitrariness on the part of the Executive in the matter of transfers. In connection with the Article 222, the bill provided that the transfer has to be made on the recommendation of the National Judicial Commission, and if such recommendation is not acceptable, the reasons have to be recorded in writing. However the shortcoming of this provision is that there is no such safeguard as is provided with respect to the appointment of judges, whereby, in case the recommendation is unacceptable the President cannot appoint a judge, who has not been recommended by the National Judicial Commission. Does this mean that all transfers of the High Court judges can be made while not accepting the recommendations of the Commission? However the bill was not enacted, although it was a welcome measure.
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The Chief Justices Council of 1990 decided that instead of the 67th Amendment Bill, the recommendations made by the Chief Justices Conference should be carried to effect. Their decision regarding the transfer of judges was that the transfer of judges from the High Court should be made with the concurrence with Chief Justice and not merely in consultation with him. If such a transfer were made with the concurrence of the CJI it would not be considered punitive. Therefore, as a result of the various judgments, the position regarding the transfer of judges is as follows: 1. 1. The proposal for the transfer of a High Court judge must be invariably be made by the Chief Justice of India. 2. 2. The opinion of the collegium comprising the CJI and five senior most judges of the Supreme Court is determinative in the matter of transfer of High Court judges. 3. 3. Consent of the transferred judge is not required for either the first or any subsequent transfer from one High Court to another. 4. 4. Any transfer made on the basis of the recommendation made by the collegium of judges is not judicially reviewable on the grounds of bias. Initiatives by the Bar: The Bar Council of India organised a National Seminar on Judicial Appointments and Transfers in October 1981. It recommended a collegium comprising of the Chief Justice of India, five senior most judges of the Supreme Court and two representatives of the Bar Council of India and the Supreme Court Bar Association. 13 The seminar was of the view that the recommendation of the collegium shall be binding on the government. Also, the Supreme Court Bar Association (SCBA) welcomed the 67th Constitution Amendment Bill , 1990 which envisaged the setting up of a National Judicial Commission. According to some members of the legal fraternity as well as some scholars, the prerogative to transfer judges is vested with the executive as per the interpretation of the Constitution and the judiciary has wrongly wrested the privilege through the 2 nd and the 3rd Judges cases.14 However, it is the belief of the researcher that the present procedure as laid out in the 2 nd and the 3rd Judges case is an adequate safeguard in order to guarantee the independence of the judiciary. Although the power under Article 222 has been given to the President, but in order to encourage judicial independence, the recommendation of the collegium of the judges has been made binding in this regard and this is a welcome step. However, certain teething problems remain and these need to be resolved quickly. The most important is the question of judicial review of transfer orders on grounds of arbitrariness or bias. The present position is that a High Court judge who has been transferred has no remedy
13 14
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Supra, note 9, p.149. Subhash C. Jaini, Removal and Transfer of A Judge of the Supreme Court /High Court and the Powers of the Parliament, The Constitution of India, Taxmann Publications, 2000, p.312.

available to him, even if he were to think that the transfer was actuated by bias. Second is the question of transfer of judges by way of punishment. It is clear that this method has not worked as the transferred judges have faced resistance from the Bar in the places where they have been transferred. The solution here is that a separate procedure such as a permanent inquiry committee needs to be established in order to punish the judges, as the present system of impeachment has not been effective. Therefore, the need of the hour is a National Judicial Commission which can deal with all such issues and suggest solutions in this regard.
NATIONAL COMMISSION TO REVIEW THE WORKING OF THE CONSTITUTION
Transfer of Judges: With regard to transfer of judges, the Commission recommends that it should be carried out as a matter of policy and the power under Article 222 and its exercise in appropriate cases should remain untouched. The Commission also does not deviate from the stated position in various judicial pronouncements and says that the transfer should only be made by the President after consultation with the Chief Justice of India and two senior most judges of the Supreme Court of India.
LAW COMMISSION REPORTS
Successive Law Commission reports have looked into the question of transfer and removal of judges and the efficacy of the present system. The Law Commission, in its 1st report (1958), noticed the need for transfer in cases where local connections may embarrass the local judges in the discharge of their duties and also give rise a belief amongst the public that justice has not been done impartially, but cautioned against free transfers and treating judges as suspects. This position has been reiterated in the 14th report of the Law Commission. In its 121st report, the Law Commission has recommended the setting up of a National Judicial Commission which shall take care of all judicial appointments and transfers. Regarding the composition of the Commission, the Law Commission said that it should comprise of people from the judiciary, members of the bar, academicians etc.
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PROVISIONS REGARDING TRANSFER OF JUDGES IN OTHER JURISDICTIONS

The purpose of this chapter is to compare and contrast the provisions regarding transfer of judges in India with those in other in order to draw any ideas from these legal systems and further improve the independence of judiciary in our country. U.S.A: All Judges of the constitutional Courts, appointed under Article III of the Constitution hold their position during good behaviour which in effect means for life or until they choose to retire. Only the process of impeachment and conviction can effect the removal of federal judges. However, not only has it evidently been legal for some time for the Judicial Council of a U.S.Circuit to discipline of its federal judges by stripping him or her of duties and authority while permitting the retention of both title and salary. The Congress has enacted the Judicial Council Reforms and the Judicial Council & Disability Act, 1980 by virtue of which the Judicial Council was empowered to look into disciplinary matters and issues of misconduct and reprimand errant judges.15 England & Wales: In recent years there has been much debate in the United Kingdom, regarding reducing the control of the executive in appointment, much concern has also been expressed regarding the transfer and removal of judges. These questions are of equal importance to the independence of the judiciary, for there is little good in ensuring the fair appointment of a judge, if that same judge can be transferred at the whim of the executive at a later stage. The position in England, regarding the and removal of judges of the Supreme Court , has long been decided and is enshrined in s.11.(3) of the Supreme Court Act , 1981.16 This provides that a person appointed as judge of the Supreme Court shall hold office during the good behaviour, subject to the power of removal by her Majesty on an address presented to her by both the houses of Parliament. Thus the statute provides that a judge cannot be removed at the pleasure of the Crown, meaning to say that the Doctrine of Pleasure does not apply. The general interpretation of the Statute is that a judge can be removed for misbehaviour, and by an address presented to the Crown asking for removal on that ground, i.e. for misbehaviour. This makes the tenure of a judge, subject to the whims and fancies of the executive, which has thumping majority in both the Houses of the Parliament. The present regime has been criticised on the ground that the Parliamentary address procedure is not an adequate safeguard for judicial independence, as the judges are not
15
Henry J Abraham et al, The Judicial Process, National Legal Center for the Public Interest, Washington D.C, 1990, p.44. 16 Angus Glennie, The Transfer and Removal Of Judges in the United Kingdom, Seminar on Appointment of Judges, Indian Bar Association, 1999, p.54.
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secure from a parliamentary majority which might secure their removal, or the executive which may have the required majority to oust them from their offices. Secondly, it is not clear whether the House as whole is the proper tribunal to judge a judge, since in effect the House is exercising what can only be termed as a judicial function, which is being exercised by the popularly elected representatives of the legislature. Therefore there has been a proposal to introduce a new procedure whereby a judge can be removed either for physical or mental incapacity, or for proved misbehaviour, in pursuance of the report of the judicial tribunal of enquiry and on no other ground. France: In France, the career judges compose a branch of the National Civil Service. They also have life tenure. That is technically incorrect, for they are removable but solely for misconduct in office and that too only on the recommendations of the High Council of the Judiciary, which acts as a disciplinary court for judges. While the Council sits as such, the President of the Cour de Cassation is its presiding officer. Japan: The Constitution of Japan provides three methods for the removal of judges , which make quite an interesting study , for the purpose of reform in India. These include, (1) The judicial declaration of incapacity (2) Impeachment (3) Dismissal by popular vote. 17 The provision regarding the recall of judges by popular vote is a novel one, though it may not be as feasible and fool proof as it may sound. Article 79 provides that the appointment of judges shall be reviewed by the elected representatives I of the House of Representatives after the first general elections, and reviewed again at the first general elections after ten years. Australia: Herein, Judges of the Higher Courts are removed by the Governor General in Council on the grounds of proven misbehaviour or incapacity. It is interesting to note that the provision regarding the removal of judges in India has been borrowed from the Australian Constitution. Therefore, it has been noticed that in most democratic countries, the procedure for removal of judges is through the process of impeachment. One of the hallmarks of a mature democracy is an independent judiciary and one of the ways of facilitating that is to guarantee security of tenure to the judges. This also ensures that the judiciary is not subject to any pressures and is able to exercise its mind individually to facts and situations free of any pressure. The Doctrine of Separation of Powers as propounded by its founder Montesquieu, says that the appointing authority itself should not be entrusted with the power of removal of judges. However, this situation is not exactly feasible and the system of checks and balances that is prevalent in most legal systems ensures that the power to remove judges is in the hands of the executive. In such a case, judicial independence is threatened, but the process of removal has been made unwieldy. Other methods such as Judicial Commissions have been entrusted also with the task of disciplining the judiciary.
17
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D.D. Basu, Commentary on The Constitution of India, S.C. Sarkar and Sons, 1967, p.85.

CONCLUSION
The judiciary has an important role to play in any democratic society. The founding fathers of our Constitution envisaged a strong and independent judiciary which would act as a counterbalance to the excesses of the legislature and the executive. India has followed the Doctrine of separation of powers. This system provides for a separate role for each of the three branches of the state, viz. the executive, legislature and the executive. If the powers relating to the three wings are concentrated in one hand, it will lead to the perpetuation of tyranny and the withdrawal of individual civil liberties. This is not a desirable position since the judiciary acts as a guarantor of our fundamental rights. Independence of judiciary, from the control of the executive and the legislative wings, was thus foreseen as a safeguard that would ensure that justice was delivered to the citizens. However, this situation cannot exist in any democratic system. As part of any system of checks and balances, the legislature is entrusted with the power of removing the errant judges through an elaborate procedure. The procedure is deliberately made tough in order to make it cumbersome and remove the fear of removal from amongst the judges so that they can exercise their mind freely while making decisions. However, such overlapping of powers does raise questions with regard to the independence of the judiciary. Since the procedure of removal of is so difficult, there has been devised a method of transferring judges as a way of punishment. Recently, there have been instances of judges of the Punjab & Haryana High Court and the Karnataka High Court being transferred as they had indulged in activities not in tune with their high offices. It is the belief of the researcher that this method is highly unsuitable and does not solve any problems. Therefore, some suggestions with regard to the issues under discussion are necessary in order to resolve some of the issues. Transfer of Judges: 1. The procedure of transfer should not be used as a way of punishment. This is because the process does not solve the problem at hand and there have been instances where the transferred judges have faced resistance from the Bar and also the people of the places where they have been transferred. 2. Secondly, transfer orders of judges should also be subject to judicial review.
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BIBLIOGRAPHY
Articles:
1. A.K.Mishra, Presidential Power to Transfer the Judges: A Critique, Journal of Constitutional & Parliamentary Affairs, 2001. 2. Anil Diwan, Commission for Judicial Appointments and the 67th Constitution Amendment Bill: Judicial Merit Selection System in The USA, Seminar on Appointment of Judges, Indian Bar Association, 1999. 3. Dr. M.Vijayawargiya, No Allocation of Judicial Work To A Judge Under Impeachment: Need For Constitutional Amendment, Indian Bar Review, 2000. 4. F.S Nariman, The Presidents Page Seminar on Appointment of Judges, Indian Bar Association, 1999. 5. K.K. Venugopal, The Demise Of the Constitution (Sixty Seventh Amendment) Bill, Seminar on Appointment of Judges, Indian Bar Association, 1999. 6. Mayank Vaid, Transfer and Removal of Judges, Seminar on Appointment of Judges, Indian Bar Association, 1999. 7. Moolchand Sharma, Appointment & Selection of Judges, Seminar on Appointment of Judges, Indian Bar Association, 1999. 8. P.P. Rao, Judicial Committee for Appointments and Transfers, Seminar on Appointment of Judges,Indian Bar Association, 1999. 9. Pooja Jha, Judicial Review of Legislative Removal, All India Reporter (Journal), 2001.
Books:
1. B.L. Hansaria, Does India Need a New Constitution , Eastern Law House, 1998. 2. D.D. Basu, Commentary on The Constitution of India, S.C. Sarkar and Sons, 1967. 3. H.M. Seervai, Constitutional Law of India, Tripathi Publications, Vol.2, 1984. 4. H.R. Bhardwaj, Law Lawyers & Judges, Konark Publishers, 1997. 5. Henry J Abraham et al, The Judicial Process, National Legal Center for the Public Interest, Washington D.C, 1990. 6. M. Hidyatullah, Constitutional Law of India, Bar Council of India Trust, 1986. 7. Report of the National Commission to the Review of the Constitution , Universal Law Publishing, 2002. 8. Satya Narayan Mishra, Constitution and Constitutionalism in India, A.P.H. Publishing, 1999.
CHANAKYA NATIONAL LAW UNIVERSITY | PATNA Page14

9. Subhash C. Jaini, Removal and Transfer of A Judge of the Supreme Court /High Court and the Powers of the Parliament, The Constitution of India, Taxmann Publications, 2000.
Reports:
1. 121st Law Commission of India Report. 2. 14th Law Commission of India Report. 3. 58th Law Commission of India Report.
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TRANSFER OF JUDGES: POLITICS