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Appointment of Judges to the
Supreme Court of India
Appointment of Judges to the
Supreme Court of India
Transparency, Accountability,
and Independence

Edited by
Arghya Sengupta
Ritwika Sharma

1
 1
Oxford University Press is a department of the University of Oxford.
It furthers the University’s objective of excellence in research, scholarship,
and education by publishing worldwide. Oxford is a registered trademark of
Oxford University Press in the UK and in certain other countries.

Published in India by
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© Oxford University Press 2018

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First Edition published in 2018

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Printed in India by Replika Press Pvt. Ltd
 This volume is dedicated to
Anil Divan (1930–2017) and T.R. Andhyarujina (1933–2017),
stalwarts of the Indian Supreme Court Bar
Foreword

I am glad that Arghya Sengupta and Ritwika Sharma have decided

to publish a book dealing with the appointment of judges to the
Supreme Court of India.
From time immemorial, mankind desired to have wise and humane
judges with the wisdom to discriminate between truth and falsehood.
The legends of King Solomon and Dharmaraja and the like are proof
of such desire. Mankind experimented with the process of identifying
wise people to be made judges. No process is perfect. Experience dem-
onstrates the shortcomings of every chosen selection process. So, the
experiment goes on.
It is said that an independent judge is the hallmark of democracy.
But there are also certain other attributes that go into the making of a
good judge. They are efficiency and integrity.
Efficiency of a judge depends upon the judge’s knowledge not only
of law but also of various other branches of learning. The wider the
range of knowledge, the greater the possibility of efficiency. However,
the mere possession of information is not knowledge. The ability to
analyse information systematically is an essential component to trans-
form relevant information into knowledge.
The popular understanding is that an independent judge is one who
is not afraid of deciding cases that come before him without troubling
himself with the question whether his opinion would be palatable to
the government. But there are other aspects of independence. Integrity
is no doubt an aspect of independence. To decide cases without being
influenced by considerations other than the law, such as personal and
political beliefs, is a key manifestation of integrity and, consequently,
xii Foreword

of independence. Not seeking to secure monetary benefits for deciding

a case in a particular way is perhaps its most critical manifestation.
Various societies in the modern world adopted different models of
selection processes for appointment of judges. India chose a model
when it became a republic. But the model is largely based on past
colonial practice. With changing times and changing economic and
political factors, the need to revisit the model was felt from time to
time, both by successive governments and the civil society. The latest
experiment was the Constitution (99th Amendment) Act, 2014, which
was struck down by the Supreme Court in the case now known as the
National Judicial Appointments Commission (NJAC) Case.
This book contains an examination of the legal history and back-
ground of the Constitution (99th Amendment) Act, 2014 and the views
expressed by the Supreme Court in the NJAC Case. It also contains
essays that examine models of appointment followed in some other
democratic societies.
The experiment goes on. The critique goes on. The last word is not
said. Perhaps it can never be said. The play must go on. The very fact
that the play goes on proves that society is vibrant. Vibrancy is one of
the vital elements for the sustenance of democracy.
This book is part of our vibrant democratic process. More are
welcome.

Justice Jasti Chelameswar

Judge, Supreme Court of India
2018
Introduction

I n the summer of 2015, for 32 days, the Supreme Court of India heard
arguments in the Supreme Court Advocates-on-Record Association and
others v. Union of India and others1 (NJAC Case). The case concerned
a challenge to the Constitution (Ninety-ninth Amendment) Act, 2014
(99th Amendment) to the Constitution of India which established the
National Judicial Appointments Commission (NJAC). Also challenged
was the National Judicial Appointments Commission Act, 2014 (NJAC
Act), which contained the procedure to be followed by the NJAC in
recommending appointments to the President of India. The NJAC was
to be the defining judicial reform of the new National Democratic
Alliance government that had swept into power in 2014. However, even
before it could start functioning, petitions to strike it down had been
filed in the Supreme Court.
From the initiation of proceedings itself, it was apparent that this
was not going to be an ordinary case. First, the presiding judge of the
Constitution bench, Justice Anil R. Dave, recused himself. In the recon-
stituted bench presided over by Justice Jagdish Singh Khehar, the gov-
ernment argued for several days as to why the matter must be referred
to a larger bench. This argument was made so that the Supreme Court
Advocates-on-Record Association v. Union of India2 (Second Judges’ Case)

1 (2016) 5 SCC 1.
2 (1993) 3 SCC 441. This is the second judgment in what are known as the
three ‘Judges’ Cases’ in the Indian Supreme Court’s jurisprudence. SP Gupta v.
Union of India, 1981 Supp SCC 87 is known as the First Judges’ Case, and Special
Reference No. 1 of 1998, Re, (1998) 7 SCC 739 is known as the Third Judges’ Case.

Appointment of Judges to the Supreme Court of India. First Edition. Edited by Arghya
Sengupta and Ritwika Sharma.
© Oxford University Press 2018. Published 2018 by Oxford University Press.
xiv Introduction

could be reconsidered and its ambiguities resolved. This request was,

however, denied. The delays occasioned by the change of bench and the
reference hearing meant that the Court continued hearing the matter
through its summer vacation.
On 15 July 2015, the hearings concluded and the Court reserved judg-
ment. As lawyers who were assisting the Union of India in preparing its
written submissions for this case, the seemingly endless cycle of argu-
ment, counter-argument, rejoinder, sur-rejoinder by diverse petitioners,
several governments, and public interest interveners demonstrated to
us a massive gulf in legal scholarship—there was no single book that
dealt with the politics, doctrine, and developments pertaining to judi-
cial appointments in India. This edited volume uses the NJAC Case as
the springboard to bridge this gulf—embarking on a larger political,
doctrinal, and comparative enquiry into judicial appointments in the
country and elsewhere.
Judicial appointments, the central issue in the NJAC Case and conse-
quently the volume, have been the subject of empirical and sociological
analysis in some prior, recent literature. Abhinav Chandrachud’s The
Informal Constitution (Oxford University Press, 2014) and George H.
Gadbois, Jr’s Judges of the Supreme Court of India: 1950–1989 (Oxford
University Press, 2011) are prominent examples. The volume of essays
titled Supreme but Not Infallible: Essays in Honour of the Supreme Court
of India edited by B.N. Kirpal, Ashok H. Desai, Gopal Subramanium,
Rajeev Dhavan, and Raju Ramachandran (Oxford University Press,
2000) also discusses controversies around judicial appointments in
some detail. This volume follows in their path, tackling this much-
discussed yet little-researched subject with a distinctly doctrinal and
comparative lens.
The centrality of judicial appointments in the narrative of the history
of the Supreme Court derives much from the political intrigue surround-
ing several appointments and non-appointments. The sudden passing
away of Chief Justice H.J. Kania appears to have led Jawaharlal Nehru to
consider offering the Chief Justiceship to Justice B.K. Mukherjea, doing
away with the seniority convention that would have meant Justice
Patanjali Sastri taking the reins. Better sense prevailed and the seniority
convention continued. The convention came under renewed stress fol-
lowing two supersessions—when the Janata government had to appoint
a Chief Justice after Justice M.H. Beg’s resignation, vociferous demands
 Introduction xv

were made not to appoint Justices Y.V. Chandrachud or P.N. Bhagwati

who had been party to the judgment of the Supreme Court in the infa-
mous case of Additional District Magistrate, Jabalpur v. Shivakant Shukla.3
Again, better sense prevailed and the convention continued. Today
however the steadfast observation of this convention has meant that
we have had Chief Justices with an average tenure of less than a year
for Chief Justices in the last six years. Previously, tenures have been as
short as 18 days (Chief Justice K.N. Singh) and 30 days (Chief Justice
Rajendra Babu). Such anecdotes, personalities, and critical episodes
have shaped the history and interpretation of law surrounding judicial
appointments in India. These form the subject matter of Part I of the
volume, which acts as a context-setter for the analysis to follow in Parts
II and III.
Part I begins with Suchindran B.N.’s critical analysis of the dynam-
ics of executive-judiciary relations in the matter of appointments from
1950 to 1973. Specifically, the essay traverses the historical journey of
appointments to the Supreme Court from the tenure of the first Chief
Justice of India, Justice H.J. Kania, to the appointment of Justice R.S.
Sarkaria as Judge of the Court in 1973. This spans the tenure of 14
Chief Justices and 53 appointments made to the Supreme Court. It
provides insights, and in some cases, hitherto unknown facts, about
the factors that prompted the appointment of certain justices to the
Court. The essay also documents the gradual incursion that the execu-
tive had begun to make in the latter half of the 1960s, particularly in
light of certain judicial decisions which appeared to the executive to be
confrontationist in nature. Appointments were not the focus of such
confrontations, but it was only to be a matter of time before they did.
The tipping point was the judgment of the Supreme Court in
Kesavananda Bharati v. State of Kerala4 (Kesavananda Bharati). In the sec-
ond essay that spans the tumultuous period between this judgment and
the end of the Emergency when Indira Gandhi was Prime Minister, Late
T.R. Andhyarujina brings appointments to the centre stage, demon-
strating how judicial appointments became a proxy for a larger battle
for control of the Constitution. Arguing that the independence of the
judiciary was imperilled beyond redemption, Andhyarujina carefully

3 (1976) 3 SCC 521.

4 (1973) 4 SCC 225.
xvi Introduction

traces the pattern of executive interference up to and after the procla-

mation of Emergency. He argues that the severe blow dealt to judicial
independence in this period, in a way, determined the course of how
the process for judicial appointments was shaped in future decades.
So unprecedented was the assault on judicial independence per-
petrated during the Emergency that its impact was felt long after it
was officially revoked. As a result, the 1980s have largely been seen
as a decade of executive consolidation over the judiciary, substituting
clandestine interference for overt attacks. A.K. Ganguli sets the record
straight by shedding light on the 1980s, particularly pertaining to the
First Judges’ Case. This judgment, largely seen in academic scholar-
ship as a genuflection of the judges before the executive, is defended
by Ganguli, arguing that it espoused the optimal balance that the
Constitution contemplated in the process of judicial appointments.
With the help of anecdotal examples, this essay tries to untangle the
case of the curious eighties, making the larger point that it is a decade
not amenable to easy typifying.
It is widely accepted in academic literature that the perceived dimin-
ishing of the role of the judiciary in the matter of appointments, and
consequently, the independence of the judiciary, led the Supreme
Court to wrest such power by means of a creative reinterpretation of
the Constitution in the Second Judges’ Case. Arun Jaitley critically reflects
on the effects of the Second Judges’ Case which created the judicial col-
legium of senior-most justices of the Supreme Court to primarily deter-
mine appointments to the higher judiciary, as concretised by Special
Reference No. 1 of 1998, Re5 (Third Judges’ Case). He explains how the
‘collegium’ came into being, without actually finding a mention in the
text of the Constitution. He makes a strong case for its reform through
practical examples of when the collegium failed in its constitutional
duties. Finally, he expresses an optimism that even though the NJAC
did not see light of the day, the intent to reform appointments pro-
cesses would persist.
An important lesson that emerges from the four preceding essays is
that the process of judicial appointments is as much political as it is
legal. Unfortunately, petitioners in various cases as well as the Supreme
Court itself have constantly treated it as a matter of only constitutional

5 (1998) 7 SCC 739.

 Introduction xvii

law. While this is only natural considering existing separation of pow-

ers or lack thereof in India’s constitutional framework, it is critical to
be cognizant of the political drama involving successive governments
and chief justices wresting the power to appoint judges. Pratap Bhanu
Mehta provides a deep insight into this conflict, asking why and
how the process of deciding upon a seemingly acceptable procedure
for judicial appointments has become the source of an interminable
confrontation between the executive and the judiciary, with neither of
the two willing to concede. Taking a step back, he argues that while
the government and the judiciary might individually be justified in
their stance, as a result of this conflict, public credibility of both these
institutions has been adversely affected. In any event, since reform of
the judicial appointments process continues to remain a live issue, he
offers some thoughts on what a possible NJAC-II, more amenable to all
branches of state, might look like.
This segues neatly into Part II which contains a critical analysis of the
various threads of judgment in the NJAC Case. Critical academic writing
on judgments of the Supreme Court of India has been limited to essays
and books by a few stalwarts, far less widespread than what a court
whose judgments have pervasive consequences, requires. Specifically,
sustained engagement with particular legal arguments in constitutional
cases has been even rarer. In what will hopefully become a template for
similarly significant constitutional judgments in the future, Part II of the
volume offers a close critique of the opinions in the NJAC Case—where
the judges got it right and where their reasoning is susceptible to criti-
cism. Of course, the NJAC Case dealt with a multitude of issues—some
such as laying down norms of judicial recusal—having little nexus with
appointments. In dealing with the NJAC Case, this volume makes no
claims to comprehensiveness, but instead, offers a close critique of the
legal reasoning adopted by the Court in coming to its key conclusions
that have a bearing on the future of judicial appointments.
It commences with an essay by Justice K.T. Thomas, who offers some
preliminary thoughts on the judgment in the NJAC Case. Thomas rues
the lack of any discernible attempt by the bench in the NJAC Case to read
down the provisions of the 99th Amendment. He argues that neither
the overwhelming majority with which the Amendment was passed
in Parliament, nor the Court’s own precedent, where it has tended to
read down amendments, came to the aid of the 99th Amendment. He
xviii Introduction

also argues how the mere apprehension of abuse of power by the emi-
nent persons or the Union Minister in-charge of Law and Justice (Law
Minister) ought not to have been deemed sufficient to invalidate a con-
stitutional amendment. In parting, Thomas provides some lessons, to
both legislators and courts, on how to ensure that future constitutional
amendments do not meet the fate of the 99th Amendment and receive
the respect they deserve.
So what exactly was wrong with the institutional design of the NJAC?
Mukul Rohatgi examines the role that the executive, represented by the
Law Minister, was expected to play on the NJAC. He succinctly charts a
history of what the Constituent Assembly envisaged the role of the execu-
tive to be and how this role eventually panned out in the appointments
process. This description culminates with an observation about how the
collegium system, meant to counteract executive interference in appoint-
ments, has come to be mired in controversy itself. In its examination of
the NJAC Case, Rohatgi notes how the Law Minister was viewed by the
bench as capable of clouding the views of the other members of the NJAC
in the process of appointment, or colluding with the eminent person(s)
to act as a structured bloc against the judicial members. He contests this
view on the ground that much of what led to the invalidation of the Law
Minister’s presence on the NJAC was based on conjectures and surmises,
and not so much on principled constitutional grounds.
Equally contested, if not more, was the presence of two eminent per-
sons envisaged by Parliament as civil society representatives on the NJAC.
Madhavi Divan takes a deep dive into the role of the civil society in the
judicial appointments process. She observes that the superior courts in
India, especially during the last few decades, have assumed an activist
role. Given such a role, at a time when several democracies around the
world are making conscious attempts to include members of the civil
society, or ‘lay’ members, in the appointments process, she argues that
India should not stay far behind, especially given the visibly public role
played by the Court. Eminent persons on the NJAC would have ensured
a voice to the common people in appointments, who are the eventual
consumers of the adjudication processes carried out by courts. More par-
ticularly, the inclusion of lay people in the appointments process would
have positively impacted the cause of diversity in appointments.
The ninth essay in this volume deals with the ramifications of the
judgment in the NJAC Case for the basic structure doctrine. The doctrine
 Introduction xix

of basic structure places limits on the legislative power to amend the

Constitution, and owes its origins to the judgment of the thirteen-judge
bench of the Supreme Court in the Kesavananda Bharati case. While
an exhaustive list of which aspects of the Constitution comprise the
‘basic structure’ eludes us, the judges in Kesavananda Bharati provided
certain illustrations. According to Raju Ramachandran and Mythili
Vijay Kumar Thallam, the judges in the NJAC Case, by striking down
the 99th Amendment for violating the basic structure, appear to have
conceptually expanded the remit of the basic structure doctrine signifi-
cantly. They conclude that the contents of what was held to be part of
basic structure in the NJAC Case are largely incapable of being defended
normatively. Against this background, they chart the significance of the
judgment on constitutional law and separation of powers questions in
the future.
A different perspective on the judgment is provided by Arvind Datar
who launches a scathing indictment of the NJAC Act, and presents what
he calls the ‘fatal flaws’ in the legislation. If the legislative enactment is
as flawed, Datar argues, the judgment can scarcely be anything but a
resounding invalidation. It calls out the NJAC Act for its faulty drafting,
and how it was open to challenge on eight specific grounds. He believes
that the NJAC Act was not the fruit of a particularly thoughtful exercise
in drafting of laws, a view which was also accepted by the Court. The
presence of an even number of members, absence of qualifications for
eminent persons, the susceptibility of the appointments process to be
amended by Parliamentary law, and the possibility of misuse of the
veto power were some of the grounds which indicated that the NJAC
was doomed to fail.
The doctrinal device on which the NJAC Case was won and lost
was the effect of the amendment on judicial primacy. Gautam Bhatia,
through a close reading of the NJAC Case, assesses both whether as a
descriptive fact the judgment held judicial primacy to be part of the
basic structure, as well as whether such reading was normatively justi-
fied. Bhatia also expresses reservations about the extent of the Court’s
engagement with the concept of ‘primacy’—its importance for the inde-
pendence of the judiciary, and whether it is part of the basic structure
of the Constitution.
While much discussion on the NJAC Case has centred on Justice
Khehar’s lead opinion, it was our firm belief that Justice Lokur’s
xx Introduction

concurring opinion merits a standalone piece in the volume. Alok

Prasanna Kumar comments on the robust defence of the collegium
system as espoused in Justice Lokur’s opinion. Justice Lokur’s defence
of the collegium makes for a compelling read at a time when the col-
legium system has been receiving all-round criticism for its manner of
functioning. While Justice Lokur’s defence is vehement, Kumar high-
lights certain principled (and pointed) deficiencies of the collegium
which might have not been considered adequately. Equally, he argues
that the notion that the collegium upholds judicial independence does
not, by itself, mean that an alternative system of appointments would
be likely to disturb it, or would not be able to satisfactorily uphold it.
In a judgment which invalidates a constitutional amendment by a
majority of 4:1, the dissenting opinion is bound to stand out, more
so if it is as incisive as the one delivered by Justice Chelameswar in
the NJAC Case. Arghya Sengupta dissects the methodology adopted by
Justice Chelameswar for assessing the validity of a Constitution amend-
ment tested against the basic structure, and applies this methodology
to test the validity of the 99th Amendment. He brings to light Justice
Chelameswar’s careful understanding of the constitutional relation-
ship between the executive and the judiciary in light of the separation
of powers principle, lost in his brethren’s over-emphasis on select
instances from constitutional history.
Part II of the volume ends with a few key thoughts by Gopal
Subramanium on how the judgment in the NJAC Case is a befitting
affirmation of judicial independence by the Supreme Court. This essay
provides a conceptual understanding of judicial independence, against
the backdrop of certain pivotal instances from India’s judicial history.
The highlight of this essay is Subramanium’s discussion of Union of
India v. Sankalchand Himatlal Sheth6—a judgment crucial for establish-
ing the contours of judicial independence in the context of transfer of
High Court judges. This essay gives this case the attention it merits by
addressing the issue of judicial independence against its backdrop.
The Supreme Court of India has had an inconsistent record in its
approach towards comparative law. While in a judgment dealing with
the role of public prosecutors,7 it quoted extensively from laws in

6 (1977) 4 SCC 193.

7 National Human Rights Commission v. State of Gujarat, (2009) 6 SCC 767.
 Introduction xxi

Commonwealth countries, in Suresh Kumar Koushal v. Naz Foundation,8

upholding the criminalization of intercourse against the order of nature,
it refused. A similar reluctance to embracing comparative experiences
was seen in the NJAC Case. Whether such reluctance was justified, and a
reference to some experiences that might have justified a fuller embrace
of comparative law, is the subject matter of Part III of this volume.
This part begins with Suhrith Parthasarathy’s overview of the use
of comparative law in the NJAC Case, calling out the judgment for its
absence of a reasonable analysis of the comparative experience. He
shows how the Supreme Court adopted an isolationist approach by
shunning international experience from fifteen countries cited before
it by the Union of India to drive home the point that executive pres-
ence in judicial appointments does not, by itself, impinge upon judicial
independence. Parthasarathy contests the Supreme Court’s cursory dis-
missal of relevant international experience on the ground that India,
with its peculiar set of circumstances, cannot replicate the experiences
of other nations in judicial appointments. He argues that this is self-
serving and the judgment would have been better served by a surer
grasp of comparative law and its rationales.
Part III then proceeds to examine the judicial appointments processes
in select jurisdictions across the world. These essays are an exercise in
analysing the relationship between appointment processes in various
jurisdictions and independence of their judiciaries. The selection of
jurisdictions is reflective of the currently active state of debates and
developments around judicial appointments in each of them together
with their relevance for India.
The country which has made rapid reforms despite a well-established
and fairly well-functioning appointments system has been the United
Kingdom (UK). Chintan Chandrachud discusses the transition to the
commission model of judicial appointments in the UK with the advent
of the Constitutional Reform Act of 2005 (UK CRA). Besides remodel-
ling the office of the Lord Chancellor, the UK CRA also established a
new Supreme Court for the UK. Chandrachud describes the historical
reasons which were instrumental in the enactment of the UK CRA. Most
significantly, the commission model in the UK provides for a sustained
participation of ‘lay’ members, who are expected to be representatives

8 (2014) 1 SCC 1.
xxii Introduction

of the civil society. This, Chandrachud argues, did not receive adequate
consideration by the Indian Supreme Court in the NJAC Case. As a
result, the judgment is either incorrect, or highly reductionist, when it
says that the appointments process in the UK shows an increasing trend
towards judicialization.
From the UK, the volume proceeds to another Commonwealth juris-
diction—South Africa—where the Judicial Service Commission (JSC)
has been established in accordance with the South African Constitution
and is regulated under the Judicial Service Commission Act, 1994. Chris
McConnachie analyses the JSC’s performance over the last two decades,
about which opinion appears to be divided. McConnachie describes
how the JSC has been successful in enhancing transparency in the selec-
tion process and improving the diversity of the judiciary. At the same
time, the substantial number of politicians on the JSC has constantly
irked its detractors, who apprehend undue political interference in
appointments. Notwithstanding these concerns, McConnachie remains
categorical about the South African judiciary being independent and
credible. In this context, McConnachie makes an important point, one
which holds immense significance for India—that the independence of
the judiciary remains contingent on several variables, and the identity
of those making the appointments is just one such.
From the commission model, the volume turns to look at a system
where appointments are made primarily at the behest of the executive.
Peter McCormick, traces the genesis of the Supreme Court of Canada
under the Supreme Court Act of 1875 (Supreme Court Act), and the
procedure for appointment of judges. The procedure as described in
the Supreme Court Act is brief, and only envisages that judges are to
be appointed by the Governor in Council. However, the way judicial
appointments have actually worked in Canada constitutes an impor-
tant lesson for India. A reformed procedure for appointments involves
the Prime Minister and the Minister of Justice interacting with vari-
ous Chief Justices, law school deans, and provincial justice ministers
to solicit names of potential appointees. McCormick argues that the
widening of the pool where consultation is made has resulted in the
appointment of persons with diverse credentials. Thus, the Canadian
experience demonstrates variations in appointment mechanisms for
broad-based consultation even in the absence of a commission model.
McCormick however rues that most innovations in the appointments
 Introduction xxiii

process have been short-lived, and there has been a general reversion to
a more secretive process.
The volume then turns to the sub-continent and an analysis of
appointments processes in Pakistan, Sri Lanka, and Nepal, countries
culturally closer, in many ways, to India. Sameer Khosa discusses the
landmark developments pertaining to judicial appointments in the last
decade in Pakistan. Pakistan began its experiment with the commission
model of appointments with the Constitution (Eighteenth Amendment)
Act, 2010 (18th Amendment) which established the Judicial Commission
of Pakistan, comprising members from across the judiciary, political
executive, and the bar. Much like the 99th Amendment to the Indian
Constitution, the 18th Amendment in Pakistan was also challenged
before the Supreme Court of Pakistan. However, unlike in India, the
Supreme Court of Pakistan upheld the 18th Amendment in District Bar
Association, Rawalpindi v. Federation of Pakistan9 (District Bar Association).
Khosa discusses the appointments process in Pakistan that existed prior
to the 18th Amendment, followed by a close examination of the judg-
ment in District Bar Association. He argues that even though the 18th
Amendment, which ushered in the commission model in Pakistan, was
upheld, by means of interpretation, what the Supreme Court has upheld
is different from the process envisaged by this Amendment.
Rehan Abeyratne describes the trajectory followed by judicial
appointments in Sri Lanka under its constitutions, each of which, he
argues, has been successively less protective of judicial independence.
Abeyratne analyses the switch to a transformed appointments process
in 2001 when the power to appoint judges of the Court of Appeal and
the Supreme Court was vested in the Constitutional Council, a ten-
member body comprising largely of members of the Legislature. He
also analyses the eventual reversion to President-led appointments
in 2010. The controversial impeachment case of Chief Justice Shirani
Bandaranayake reveals how processes for removal were as politicized
as that of appointments. Abeyratne argues that politicization, in part,
was also the consequence of the excesses perpetrated by the previous
government, and hopes that the coming into power of a new govern-
ment under President Maithripala Sirisena will assist in depoliticizing
the judicial appointments process.

9 PLD 2015 SC 401.

xxiv Introduction

The volume culminates with a discussion around the live topic of

judicial appointments in Nepal, in its recently enacted Constitution
of 2015 (which is Nepal’s seventh). Semanta Dahal’s essay analyses
how Nepal has consciously made attempts to depoliticize judicial
appointments—while appointments to the Supreme Court were
originally made at the behest of the executive (the monarch), the fifth
Constitution onwards (in 1990), appointments became the prerogative
of the ‘Judicial Council’, a body chaired by the Chief Justice of Nepal,
comprising members from the executive as well as the bar. By the
time Nepal enacted its Interim Constitution of 2006, judicial appoint-
ments involved all three branches of the government. The procedure
required judges nominated by the Judicial Council to attend a com-
pulsory hearing before the Parliamentary Hearing Special Committee.
Dahal observes that the 2015 Constitution retains the Judicial Council
and the Parliamentary Hearing Special Committee, and by necessary
implication, the model of power-sharing between the three branches
of government. Though still largely untested, Dahal believes that the
appointment procedures under this Constitution may lead to appro-
priate selections being made, though its complicated power-sharing
devices might quite easily descend into a gridlock.
The Supreme Court of India has rightly been described by a com-
mentator as the most powerful Court in the world.10 Within the powers
vested in it by the Constitution, it awards the death penalty, overthrows
elected governments, and lays down which parts of the Constitution
are immune to amendment by Parliament. The NJAC Case reflects a
particular constitutional vision—that sustaining the credibility of
such a powerful court requires careful and impartial selection that a
non-partisan commission without a clear majority of judges is institu-
tionally ill-equipped to do. The history of judicial appointments, the
reasoning employed by the judges in the case as well as a comparative
understanding of appointments processes in other jurisdictions, sug-
gest that the reality is perhaps a little more complex. It is some of this
richer and more complex reality that this volume attempts to capture.

10 S.P. Sathe, ‘Judicial Activism: The Indian Experience’ (2001) 6 Washington

University Journal of Law 29, 43, 87.

 From Kania to Sarkaria
Judicial Appointments from 1950 to 1973
1 suchindran b.n.*

O n 26 January 1950, the founders of the Indian Republic created

the Supreme Court of India. In an act of great faith and trust, they
bequeathed to its judges the product of their great labours. The Court,
in the words of one its members, was intended to be the ‘sentinel on
the qui vive’.1 To say that this bequest was made without any reserva-
tions would be untrue. There were apprehensions expressed as to how
the new Court would respond to the ‘new deal’ legislation attempting
to create a new social order through radical changes to property rights
and social equality laws.2 But the Assembly was equally clear that they
wanted an independent and not a subservient court. As Nehru put it,

* The author would like to thank Vikram Raghavan for his encouragement
and discussions; and two law students, Gaurav Natarajan and Akshay Nagarajan,
who provided research assistance for this essay. He would also like to add that
most of the facts for this essay have been taken from interviews conducted by
scholars such as George H. Gadbois, Jr and Granville Austin, autobiographies
of the judges themselves, or persons involved in the appointment process. It
can be safely presumed that with regard to their own appointments, the judges
might have glossed over any canvassing that they might have done and, in many
cases, did not know the actual deliberations that led to their appointment.
1 State of Madras v. V. G. Row, 1952 SCR 597 [13].

2 As Nehru put it: ‘Within limits no judge and no Supreme Court can make

itself a third chamber.’ Constituent Assembly of India Debates, vol 9, no 4 (Lok

Sabha Secretariat) 10 September 1949, 1195–6.

Appointment of Judges to the Supreme Court of India. First Edition. Edited by Arghya
Sengupta and Ritwika Sharma.
© Oxford University Press 2018. Published 2018 by Oxford University Press.
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 CHAPTER XX—FIRE
Angel McCoy did not ride back to the JML with Langley that evening.
He had a few drinks at the Red Arrow and decided to stay a while.
Langley tried to argue him into going back to the ranch, but Angel
was stubborn. Whiskey usually affected him that way, so Langley
rode on alone.
Sorensen, Blackwell, and Weed were trying to spend the money
they had drawn from Reimer, and with them Angel found congenial
companionship. They were deliberately getting drunk. Angel was
able to drink a lot of whiskey and still not show it in his actions, but
his talk usually gave him away. He became rabid, devilish; an
anarchist without a bomb. Even the other cowboys wished that Angel
would hang up his gun before he began drinking.
“Where’s that sheriff?” he demanded, after the rest of the boys had
grown goggle-eyed. “He’s the whipperwill I’m layin’ for.”
“What did Slim ever do to you?” asked the bartender.
“Hit me,” snarled Angel. His pale face looked yellow in the
lamplight, like old ivory, and his eyes glistened.
“Hidju?” queried Boomer Weed. “Whaffor?”
“None of yore business!”
“Hidju hard?”
“I told yuh to shut up, didn’t I?”
“Didee, Dell? Didee tell me to shud’p?”
Dell Blackwell nodded solemnly.
“I heard’m menshun’t,” said Dell. “’S far’s that’s consherned, I trail
m’ bets with Slim. F’r money, marbles, ’r chalk, he c’n whip yuh on a
sheepskin, Angel.”
“He couldn’t whip me no time,” declared Angel.
“Le’s go fin’ him,” suggested Boomer. “Might’s well have more
fight’n lesh talk. Whatcha shay, Angel? No, don’t make fashes at me,
Angel. Ha, ha, ha, ha, ha! You’re shore, yuh pale-fashed card-sharp.
Slim swiped yore girl.”
 Angel flushed crimson and his hand streaked for his gun, but
Blackwell was still sober enough to clinch with him and prevent him
from drawing the gun.
“Let’m loosh,” coaxed Weed. “I c’n han’le him, Dell.”
“You ought to keep yore mouth shut,” said the bartender. “Don’t
start no gun-battles in here.”
“Ho, ho, ho, ho, ho!” roared Sorensen with a sudden excess of
mirth. “Anchel vant somebody to holt him. He don’t try git loose.”
“You dam’ Swede!” snarled Angel impotently.
“Led him loose,” said Sorensen. “I squirsh him.”
“You fools calm down,” growled the bartender.
“This ain’t no place to start fights.”
“You hang onto yourself, Angel,” warned Dell. “Weed’s drunk.
Don’t start no gun-play; sabe?”
Angel shook out his twisted sleeve, glaring at Weed, who laughed
owlishly at him and offered to buy a drink.
“Damn you and yore drinks!” snapped Angel.
Chuck Ring came sauntering in, and Boomer immediately got hold
of his belt.
“C’mon and have a drink, Chuck. I jus’ had a battle with Angel. He
says he’s goin’ to crawl Slim Caldwell.”
“Thasso?” Chuck looked curiously at Angel, who stood apart from
them, glaring at Boomer.
“What you got ag’in’ old Slim, McCoy?” asked Ring.
“That’s my business.”
“Yea-a-ah? And yuh aim to git him, eh?”
“Well?” defiantly.
“Not so dam’ well,” said Chuck dryly. “You monkey with Slim and
you’ll think the seat of yore pants got caught in the door of a volcano.
Lemme tell yuh a few things, Angel. You start anythin’ round here
and they’ll take you up on a broom. You’re a bad actor in yore own
mind. You may be able to hang the Injun-sign on old Rance McCoy,
but to us, you’re just another dirty shirt that needs doin’ up. Yuh play
a crooked game, pardner—and that lets yuh out. Now, yuh better trot
along home and forget all that talk about ‘gettin’’ Slim Caldwell. I
know why yuh hate Slim. Everybody in town knows it, Lila as well,
and it won’t do yuh no good with her. If I was in yore boots, I’d cut
me a straight trail out of this country and not leave a single blaze.”
Angel’s face was colorless now, even to his lips, which were a
white line across his white face, and his eyes were half-closed,
twitching at the outer corners. But he made no move to resent what
Chuck had said. Angel was fast with a gun, but he knew Chuck was
as fast. And there were three more guns to account to—not counting
the one behind the bar, in easy reach of the bartender.
For at least ten seconds he stood there immovable, before he
stepped up to the bar a few feet away from Weed, and asked for
whiskey. There was nothing of the craven about Angel. He drank
alone, keeping one hand on the bottle.
“Don’t be a fool,” cautioned the bartender.
“I’m payin’ for what I get,” replied Angel evenly.
“Embalmin’ his guts,” said Blackwell. “Lotsa folks have to do that
to keep their nerve.”
But Angel did not even look toward Blackwell. As far as
appearances went, he might have been an entire stranger enjoying a
few drinks alone. But Chuck watched him. He knew Angel was
steeping his soul in liquor, either trying to deaden the sting of what
Chuck had said or to brew a fresh devil in his mind.
Chuck had no mean capacity himself, but he was human enough
to get drunk in a reasonable length of time. He counted Angel’s
drinks in the next half-hour, and the total was twelve. Twelve drinks
of raw whiskey on top of what he had already taken.
And all the effect it had was to cause Angel’s lips to draw back in a
sneering grin, as he looked at himself in the back-bar mirror. Nor did
his hand tremble as he filled the twelfth glass to the top.
Then he walked steadily to the door, where he turned and looked
coldly at the group in front of the bar. All except Chuck were owl-
eyed with liquor. Chuck watched him closely, anxiously. But all Angel
did was to throw back his head and laugh hollowly at them, as
though defying them to harm him in any way. Then he stepped
outside and went up the street.
Chuck surged away from the bar, swearing softly, and went to the
front door, where he saw Angel go down the street, walking as
straight as though he had not taken a drink. He stopped in front of
Parker’s store, where he seemed to be looking through the window,
after which he turned and came back to the Eagle hitch-rack, where
he mounted his horse and rode out of town, heading toward the JML
ranch.
Chuck sighed with relief as he saw Angel ride away. He did not
want trouble with Angel, but he realized that it would be inevitable if
Angel stayed in Red Arrow. Blackwell, Sorensen, and Weed were
past even the humorous stage now; so Chuck deposited them in
convenient chairs, where they might slumber until closing time.
“Where’d Angel go, Chuck?” asked the bartender.
“Home.”
“That’s good. He’s the craziest puncher I ever knew. But can’t he
pack liquor! Mister man, he’s the hollowest human I ever knowed.
Have a drink, Chuck?”
“I hope to die if I do. One more drink and the dignity of my office is
all shot to hell. Good-night.”
Chuck went back to the office, where Scotty was playing solitaire,
and told Scotty about Angel.
“I wouldn’t tr-rust him as far as I could throw a fr-reight wagon,”
declared Scotty, shoving the cards aside. “He has the same glint in
his eye that ye see in the eye of an outlaw cayuse. Now, where do
ye suppose Slim and the two boys have gone, Chuck?”
“Slim didn’t know,” laughed Chuck. “He follows Hashknife around
like a good old pup, with Sleepy trailin’ both of ’em. But Hashknife’s
no fool.”
“Not a bit o’ one,” agreed Scotty earnestly. “I’d hate to be in Kid
Glover’s boots when that tall cowpuncher meets up with him. Didja
ever study the length of Hartley, takin’ account of the way his
muscles work? They’re long, like the muscles in a snake. But he’s
——”
From far up the street came a wailing cry. It was repeated several
times before Chuck and Scotty reached the door. It was a woman’s
voice they heard, crying—
“Fire! Fire! Fire!”
“Fire!” snorted Chuck, stepping out on the sidewalk. There were
people running from Parker’s store, and more from other places of
business. Chuck and Scotty ran up the street and crossed over to
the crowd. The woman was Mrs. Parker.
“It’s the Parker home!” yelled one of the men.
“Get some buckets!”
Chuck raced back to the office, where he secured a large bucket
and an axe. As he came through the doorway, Hashknife, Sleepy,
Slim, and their two prisoners rode up to the front of the office.
“Parker’s house is on fire!” yelled Chuck, paying no attention to the
prisoners, as he raced up the street.
“I’ll hold ’em,” said Sleepy. “Go ahead.”
Hashknife and Slim threw the lead-ropes to Sleepy, and went
galloping toward the Parker home, passing the scattered crowd and
jerking to a stop at the gate, where they dismounted and ran toward
the house.
As yet the fire was confined to the front of the house, but blazing
merrily. The door was open and the flames were billowing out,
fanned by a breeze from the rear. The crowd came piling in,
knocking down the picket-fence.
They headed for the well at the rear of the house, led by Jim
Parker. Slim grabbed him by the arm, forcing him to stop.
“Where’s Lila?” demanded Slim.
“God knows!” panted Parker. “She was at home alone. My wife
was at the store, and when she came home the house was on fire.”
Slim and Hashknife ran to the back door, dashing through the
smoke and found the stairway. Slim pushed Hashknife aside and
leaped up the stairs. Hashknife managed to close the door between
the hall and the living-room, but not until he had caught a fairly good
view of the blazing interior. He caught a glimpse of the center-table,
lying on its side, and almost in the center of the room on the floor
was the big lamp, which usually sat on the table.
Almost before Hashknife had closed the door, fighting against the
smoke-fumes, Slim was staggering down the stair. Together they
stumbled out of the house and into the cool night air, where they
panted like a pair of Marathon runners. Men were running back and
forth from the well, tossing ineffectual buckets of water through the
windows, while others shouted advice, which nobody heeded.
“She’s not up there,” panted Slim. “I was in every room.”
 Everybody in Red Arrow was there, it seemed, and the word had
been passed that Lila was in the house. Mrs. Parker was crying, Jim
Parker swearing.
Hashknife drew Parker aside.
“Any idea how it happened, Parker?”
“Hell, no!”
“Lila ain’t in there. Me and Slim searched.”
“Thank God for that, Hartley!”
Parker ran back to tell the women. The house was doomed, and
everybody seemed to realize it. Hashknife and Slim drew back
nearer the fence when the flames shot through the roof with a
crackle like a machine gun. Chuck, sweating, his shirt on fire in
several places, came to them.
“Whatsa use?” he asked. “Yuh can’t do a thing, Slim.”
“Not a thing, Chuck. How did it get started?”
“Nobody knows. Ain’t she a dinger of a fire, though? Look at her
blaze!”
Dell Blackwell and Boomer Weed, still half-drunk, joined them.
They had tried to carry buckets of water, but neither of them could
find the well after the first trip.
“What became of Angel?” asked Slim.
“He went home,” said Chuck. “I shore told him where to head in at,
didn’t I?”
“If I remember right, yuh did,” agreed Blackwell dryly.
“How long ago did he go home?” asked Slim quickly.
“Fifteen or twenty minutes ago,” replied Chuck. “Mebby it was a
little longer, but I don’t think so.”
“C’mon, Hashknife!” snapped Slim. “You, too, Chuck! Never mind
the fire—c’mon!”
Slim led them back at a brisk trot. Scotty saw them going away,
and followed after.
“What’s the matter?” asked Chuck.
“Don’t ask me now,” replied Slim. “Wait and see.”
 CHAPTER XXI—THE FINISH AT THE JML
“What didja find out, Jim?”
Jim Langley helped himself to a generous cut of beef and leaned
aside to let One-Eye Connell pour him a cup of coffee.
“Didn’t find out a thing, Jess.”
“Yuh seen Hartley, yuh say?” queried Jess Fohl.
“Yeah, I saw him. One-Eye, this coffee is cold.”
“Yuh didn’t give me time to heat her, Jim. We had supper two
hours ago. You didn’t say when you’d come back.”
“Heat the stuff up a little, will yuh?”
“What did Hartley want yuh for, Jim?” asked Briggs.
“Not a thing! I think you and One-Eye are loco.”
“Like hell!” snorted Briggs. “Leave it to One-Eye if he didn’t say he
came to see yuh. He even wanted to wait for yuh. Ain’t that right,
One-Eye?”
“Gospel truth, Jim.”
“Well, he didn’t say a word to me about bein’ here.”
“That’s what looks funny to me,” said Briggs. “He’s no fool, Jim.
Are you goin’ to ignore everythin’ Slim told yuh about him?”
Langley swallowed a mouthful of food, blinking thoughtfully.
“He’s got nothin’ on us, Boomer,” said Langley.
“Yuh don’t know a thing about him. Angel stayed in town, didn’t
he? Drinkin’?”
“That’s his business; he’s of age, Boomer.”
“And with the brain of a five-year-old savage. He’ll get drunk and
pull a fight with somebody. He’s sore at Slim Caldwell over that girl
business. You know him well enough to sock him over the head and
bring him out here roped on a bronc. By God, I’ve had about enough
of him myself, Jim. He ain’t quite human, if yuh ask me about him.”
“If you’re scared, why don’t yuh quit?” asked Langley.
“The road is wide open, Roper.”
“I’m no quitter, Jim,” quickly. “Neither am I a fool. My neck is worth
more to me than most anythin’ I’ve got, and I don’t like to have a
crazy fool riskin’ it for me.”
Langley shoved back his plate impatiently.
“Write yore own ticket, Boomer,” he said wearily. “I’m tired of
bearin’ yuh complain. Let’s have a round of poker.”
“Here or in the bunk-house?” asked Fohl.
“Here.”
One-Eye cleared off the table, wiped up the crumbs, and stacked
the dishes in a pan, while Langley produced the chip-rack and the
cards.
“Yuh got to stand me off for a few dollars,” said Jess Fohl. “I’m
plumb busted, Jim.”
Roper Briggs walked through the front room and out to the front
porch. It was very dark, but he could see a dull glow in the direction
of Red Arrow. He watched it several moments, and then came back
into the house, where he picked up Langley’s field-glasses.
“There’s a fire in Red Arrow,” he called to the boys, and went out
on the porch.
They followed him out. It was rather hard to tell just where the fire
was. It seemed much closer than Red Arrow.
“Must be in town,” said Langley. “No house or hay-stack between
here and Red Arrow.”
“Jist enough wind to burn the town,” said Fohl.
“Well, we can’t help it,” said Langley. “Let’s play cards.”
They went back and started their game, but there was an
undercurrent of nervousness which caused them to play in a forced,
jerky manner. Briggs continually listened, and he soon had the
others doing the same thing.
“Aw, hell!” snorted Langley. “This makes me tired. What are you
listenin’ for, Roper?”
“I dunno,” confessed Roper foolishly. “What’s the rest of yuh
listenin’ for? I’m not doin’ it alone.”
“Well, quit it! Yuh make me jumpy. Gimme three cards, One-Eye.
Three cards! My God, can’tcha count? Not five—three!”
“Don’t bark at me!” roared One-Eye, who was usually rather soft-
spoken.
“You’ve got it, too, have yuh?” Langley threw his cards down on
the table and shoved his chair back.
 “What’s that?” exclaimed Roper Briggs.
It was the sound of a running horse which stopped down by the
corral. Roper stepped to the door and flung it open, while the others
crowded in behind him. They could hear a voice swearing—Angel
McCoy’s voice.
Jim Langley shoved the other men aside and went striding down
to the corral, followed by the others. It was so dark they could not
see Angel and his horse until they were close to him. He was
laughing drunkenly.
“What is wrong with you, Angel?” demanded Langley.
“Wrong with me?” Angel laughed drunkenly. “Nothin’ wrong with
me. But I made that town set up and notice. They’ll remember me,
damn their dirty skins! Whoa, Sally Ann!”
“Who have you got there?” snapped Langley. “A—a woman!
Angel, you fool! What have you done now?”
“My woman!” rasped Angel. “Git away from her, Langley!”
“A woman?” gasped Briggs.
“His woman?” wondered Fohl. “Why, the fool ain’t——-”
Langley scratched a match, shielding it from the breeze. Angel
was backed against his horse, one arm flung around Lila, the other
hand holding a cocked six-shooter. Lila’s face was bloodless, her
waist torn, a sleeve fluttering in the wind. Then the match went out.
“Oh, you fool!” wailed Briggs. “You awful fool!”
“Angel”—Langley’s voice shook with emotion—“Angel, have a little
sense. My God, don’tcha know what you’ve done? C’mon in the
house.”
“What have I done?” Angel’s voice was querulous. “I’m my own
boss, ain’t I? They gave me the worst of it, and I’m payin’ ’em back.
And I’m payin’ Slim Caldwell, damn his dirty heart. Don’t touch me,
Langley—none of yuh.”
“Come in the house,” begged Langley. “Mebby we can git things
straight.”
“I’ll come in, Langley; but don’t touch us. Go ahead—we’ll come.”
The men of the JML went ahead and entered the lighted kitchen,
while close behind them came Angel and Lila. He had her right hand
gripped at the wrist, and was still carrying his cocked gun. He
shoved her in ahead of him, and stood there, glaring at them. He
was hatless, and there were marks on his face which showed that
Lila had not come willingly. She was panting heavily, and Langley
thought she was going to faint, but when he started to get her a
chair, Angel threw up his gun.
“Stay where yuh are, Langley,” he said harshly.
“Sure,” agreed Langley.
“Oh, let me go,” begged Lila.
Angel laughed mockingly.
“The—the house was on fire,” panted Lila. “We—we upset the
table and the lamp fell.”
“So that’s what the fire was, eh?” muttered Briggs. “We could see
it from here.”
“Nice little blaze, eh?” laughed Angel. “Oh, they’ll all remember
me. I paid him back, the greaser. Ha, ha, ha, ha, ha, ha! This is
good!”
“And they’ll hang you so damned high——!” exclaimed Briggs.
“Hang me? I wasn’t born to be hung, Roper.”
“But don’t yuh realize what this will mean?” asked Langley. “They’ll
know you took her, Angel.”
“How will they? Nobody seen me. They’ll think she burned in the
fire. Oh, I was sure she was alone. I seen Mrs. Parker in the store.
That house was half-burned before anybody discovered it, I’ll bet.”
Langley shrugged his shoulders helplessly.
“Go and take her back, Angel. Sneak around and leave her in
town. If they come here after you, it’ll give yuh a chance to make a
getaway.”
“The hell yuh say! Give her up? You must think I’m crazy.”
“You can’t keep her here, Angel.”
“I didn’t intend to. Give her up? Why, you damned fool, it took me
a long time to get her this far. I didn’t know a woman could fight so
hard.”
“But where can yuh take her, Angel? You’ll never get her out of
this Valley.”
“Won’t I? Once I get into the lava beds, all hell won’t stop me.”
“You crazy fool!” grunted Briggs. “You haven’t a——”
Briggs had been standing with his arms folded, but now he
dropped his hands, and perhaps Angel thought he was going to draw
a gun. At any rate, Angel’s wrist crooked and the report of his
revolver shot shook the room. Briggs jerked sideways, falling into
Fohl, who tried to save him, and almost fell with him.
“Good God!” exclaimed Langley.
Angel was crouched forward, his gun held tensely in his hand. Lila
swayed against the wall, her eyes wide with the horror of what she
had seen.
“Keep away from me,” warned Angel. “Nobody can stop me, I tell
yuh. Keep yore hands where they are. By God, I’ll kill anybody who
tries to stop me.”
“Nobody goin’ to stop yuh, Angel,” said Langley. “Don’t shoot any
more. We’ll help yuh get away.”
“There’s somebody comin’!” exclaimed Fohl. “Hear ’em?”
Angel released Lila in order to swing the door shut with a kick of
his elbow.
“The lamp!” whispered Fohl. “They can see through a window.”
With a single stride Angel reached the table and blew out the
lamp. “Keep away from me,” he warned. “Don’t touch me, damn
yuh!”
“Shut up, you fool!” hissed Fohl, bold in the darkness. “Lila, if
you’re wise, get down on the floor.”
“Stay where yuh are, Lila,” commanded Angel.
Except for their labored breathing, there was no sound in the
room. Langley had moved into the front room, and was trying to see
through the front windows.
“I heard several horses,” whispered Fohl.
“Shut up!” hissed Angel.
“... the brain of a five-year-old savage,” muttered a voice. It was
Roper Briggs, talking in a delirium.
“I’m no quitter,” he said distinctly. “... neck’s worth more to me—my
God, I’m thirsty! Whatcha drinkin’, Jim?”
“Make that fool shut up!” rasped Angel.
“He’s out of his head,” whispered Fohl.
“... put all our necks in a noose,” babbled Briggs.
“Choke that fool!”
“Choke him yourself—you shot him.”
“Water,” begged Roper.
 “Can’t I get him some water?” asked Lila.
“Stay where yuh are,” ordered Angel.
“Can yuh see anythin’ from there, Jim?” whispered One-Eye.
“Not a damn thing. Are yuh sure yuh heard any——”
Some one was knocking on the front door.
“Come out, Langley.”
It was Slim Caldwell’s voice, hoarse with emotion.
“Sh-h-h-h!” warned Angel.
“Don’t play ’possum,” warned Slim. “The place is surrounded. We
found Angel McCoy’s horse, and we know he’s in there. Bring him
out, Jim. And another thing; if that girl is harmed, we’ll hang every
damned one of yuh.”
“Yuh see!” whispered Fohl bitterly. “They’ve got all of us, Angel.
Damn yore skin, I’d like to kill you.”
“Let me go out,” begged Lila.
Angel laughed softly. He still had her wrist.
Roper Briggs was trying to sing.
“... for I’m a poo-o-o-or cowboy and I know I’ve done wrong. Beat
the drum slowly and play the fi-i-ife slowly; play the dead march as
you bear me alo-o-o-ong.”
“Roper, for God’s sake, don’t sing that,” begged Fohl.
“Kick him in the head,” said Angel callously.
“You try it!” snapped Fohl. “If I knowed just where you was——”
“Are yuh comin’ out, Langley?” asked Slim Caldwell.
“No, damn yuh!” roared Langley. “If yuh want me, come and get
me.”
“And that finishes everythin’,” wailed One-Eye.
Angel laughed with evident pleasure.
“Laugh, you crazy devil!” gritted Fohl.
“It’s a fifty-fifty bet,” said Langley. “We won’t go out and they don’t
dare come in.”
“Ninety-ten,” corrected One-Eye. “We’ll have to come out sooner
or later.”
“You yaller old quitter,” sneered Angel. “We’ll show ’em a trick or
two, Jim.”
“Take the girl upstairs,” said Langley. “There’s no use in her gettin’
shot up.”
 “She goes where I go,” declared Angel. “Whither thou goest, I will
go, eh, Lila? Ha, ha, ha, ha, ha! All my life I’ve wanted to fight
against odds, and now I’ve got a chance.”
“You crazy fool,” wailed Fohl. “Why didn’t yuh pick yore odds a
long ways from here?”
“Quit, if yuh want to, Jess,” said Langley. “Walk right out and give
up. They might pad the rope for yuh.”
“Aw, they can’t hang us,” said One-Eye hopefully.
“They can hang Angel,” said Fohl, with a great deal of satisfaction.
“They’ll be skatin’ in hell a long time before they ever hang me,”
swore Angel.
“Oh, shut up,” said Langley wearily. “No use snappin’ at each
other. We’re all in on this deal. Let’s plan what to do. How about
makin’ a break, boys? We might be lucky, eh?”
“Go ahead,” said a voice outside the kitchen door. “We been
wonderin’ why yuh didn’t.”
“That’s Hashknife Hartley’s voice,” said Fohl.
Angel swore hollowly. It sounded as though he was losing his
nerve.
“How about the upstairs winders?” queried One-Eye. “We could
drop to the ground, Jim.”
“And get shot en route, eh?” sneered Fohl. “They’d be lookin’ for
us to do that.”
Suddenly the front door banged open. Langley, who was on the
floor in the connecting doorway, fired three times toward the doorway
and then rolled into the corner. But there was no answering shot.
Langley swore impotently. He had forgotten to lock the door.
“Keep out of line with the door,” warned Langley.
“They’re afraid of hurtin’ the girl!” exclaimed Fohl. “By God, we’ve
got the best of ’em, Jim!”
“Water,” begged Briggs. “They’re burnin’ the house.”
“Please get him some water,” said Lila. “Won’t somebody get him
some water?”
“Don’t pay any attention to him,” said Angel.
Fohl swore angrily and began moving along the floor.
“I’ll get yuh some water, Roper,” he said. “I may want some myself
pretty soon.”
 “Keep out of line with that door,” warned Langley.
They heard Fohl rattling a dipper in the bucket, and in a moment
he was slithering back along the floor. They could hear Briggs
drinking the water.
“Thank you, Mr. Fohl,” said Lila.
“Shut up!” growled Angel disgustedly.
“Don’t thank me, miss,” said Fohl. “Roper’s my bunkie.”
“What’s the matter with everybody?” whispered Briggs. “It’s so
damned dark in here.”
“Angel shot yuh, Roper. Don’t yuh remember it?”
“He did? Where is he, Jess? He ain’t here in the dark, is he? Oh, I
remember now—that girl.”
“Choke that fool off, will yuh?” rasped Angel.
“That’s him!” panted Briggs. “I know his voice. Jess, I can’t—my
God, I’m as weak as a rabbit. Funny, ain’t it? He hit me in the chest,
Jess. I’m awful hot inside.”
“What are they doin’ outside?” wondered Langley.
“Fixin’ to git us,” said One-Eye, his voice filled with
discouragement. “Let’s send the girl out, Jim. She’s what they want,
anyway.”
“Like hell, you will!” exploded Angel. “She’s our ace-in-the-hole,
you fool. As long as she’s in here, they don’t dare shoot at us.”
“What’s that noise?” asked Langley.
They listened closely. From the rear of the building came a sharp
bump, followed by a scraping sound. None of the men were able to
explain it. Langley crawled back into the front room and went to the
window on the right-hand side, but it was so dark he could not see
anything.
He slid along the wall toward the front of the room. That open front
door intrigued him. Once in the open he would have a fighting
chance, he thought. The rest of them could take care of themselves.
He reached the doorway, where he waited, straining his ears for any
sound. Except for the slight rustle of the wind, all was quiet.
He stretched out flat, gun in hand, and began inching over the
doorsill. His belt-buckle caught on the sill, and he twisted sideways
to release it, when something crashed down on his head and he
ceased crawling. But he still continued to move slowly ahead across
the porch, drawn by the arms of a man who chuckled softly. It
sounded much like the chuckle of Sleepy Stevens.
Roper Briggs had been talking brokenly, deliriously.
“Where’s Langley?” demanded Angel in a hoarse whisper.
“Over by one of the front winders,” replied One-Eye.
“I think he went upstairs,” said Fohl. “I heard him.”
“I thought I heard him up there,” said Angel. “I wish them damned
fools would start somethin’.”
“Don’t worry—they will,” assured Fohl. “You kidnapped Slim
Caldwell’s girl, yuh remember—and he’s out there. Why didn’t yuh
rob a bank or kill somebody, instead of what yuh done? Give yoreself
a fightin’ chance, Angel.”
“Jim’s comin’ down,” said One-Eye.
They heard him crawling from the stairway, the knees of his
overalls rasping softly on the floor.
“See anybody, Jim?” asked Fohl.
“No,” he whispered. “Where are yuh, Angel?”
“Over here,” growled Angel. “What do yuh want, Jim?”
“I’ve got a scheme.”
“Make up your mind to come out, folks.”
It was Slim Caldwell’s voice, speaking near the kitchen door.
“You go to hell!” snapped Angel. “We’re not comin’ out. And lemme
tell yuh somethin’ else, Caldwell; this girl ain’t comin’ out neither. You
start anythin’, and she’ll suffer for it.”
Slim made no reply to Angel’s threat. Came the sound of some
one changing his position on the floor, a gurgle, which might have
been a curse—the sound of a blow.
“What in hell was that?” demanded Fohl. “Angel, did you hit that
girl?”
“I—I’m all right,” gasped Lila. “What——”
“Fohl!”
It was not Jim Langley’s voice.
“Who in hell was that?” asked One-Eye quickly. “That ain’t Jim’s
voice!”
“What do yuh want?”
Fohl’s voice was high-pitched, nervous.
 “The game is up, boys,” said Hashknife Hartley. “Unless I’m
mistaken, Jim Langley is plumb safe. Angel is out of the fight. One of
yuh light the lamp.”
“Well, I’ll be a liar!” exclaimed One-Eye. “It’s Hartley, Jess. Go
easy. My God, we’re——”
“I’ll light it,” said Fohl. “I’m through; so don’t shoot.”
He managed to find the lamp, and after breaking several matches
he lighted the wick. Hashknife squatted on his heels against the
kitchen door, his six-shooter leveled from his knee, a grin on his lips.
Angel was stretched out on his face, while nearer the corner was
Lila, bracing herself on one elbow, wide-eyed, a smudge of dirt
across her cheek.
Roper Briggs was lying against the opposite wall, his head fallen
forward on his chest, and near him was One-Eye Connell, blinking
his remaining optic at everything. Fohl had backed away from the
table, where he had placed his gun, and was holding his hands
shoulder-high.
“All right, cowboy?” yelled Sleepy from the front door.
“All set!” yelled Hashknife, and in came Sleepy, Slim, and Chuck,
their guns ready for anything that might happen.
“Yuh kinda busted up the nest, didn’t yuh?” laughed Sleepy.
Slim went straight to Lila and helped her to her feet. She was
beyond words as she clung to his arm.
“It’s all right,” he told her.
“It’s all right,” echoed Jess Fohl. “We was a lot of fools to try and
help him out. I’m glad we didn’t hurt anybody, ’cause that kinda lets
us out. Angel shot Roper Briggs.”
Hashknife looked curiously at Fohl.
“Lets you out, eh?” He turned to Sleepy. “Go upstairs and get the
old man.”
“Old man who?” asked Sleepy.
“Old Rance McCoy.”
Sleepy lighted another lamp and went up the stairs. Angel groaned
and sat up, blinking foolishly. His eyes were dull and he swung his
head like a sick animal.
“You must ’a’ popped him a good one, Hashknife,” said Slim.
 “I shore did. That old ladder done the trick. It let me in that upstairs
window, and I was at the bottom of the stairs when I heard
somebody get slugged at the front door. And then I heard somebody
ask for Langley. I knew he was the missin’ link; so I played Langley
long enough to whisper to Angel with my gun barrel.”
Angel sat up. His head was clearing fast, and his eyes flashed to
Lila, who was standing close to Slim. No one was paying any
attention to Roper Briggs, who had lifted his head and was peering
across the room at Angel. Briggs had a gun beneath the crook of his
knee, and his groping fingers closed around it.
Sleepy was coming back down the stairs, making plenty of noise.
He was half-carrying old Rance McCoy, who was barefooted, naked
to the waist, and hardly able to take a step.
“The old boy’s in bad shape,” panted Sleepy. “Don’t sabe what it’s
all about. Cussed hell out of me.”
As they turned to look at the old man, blinking in the lamplight,
Angel grasped the corner of the table and surged to his feet. At the
same instant he saw Jess Fohl’s six-shooter on the table, and as
quick as a flash he grabbed it with his right hand.
“Damn yuh!” he choked. “My turn, by God! If yuh move, I’ll——”
But Angel didn’t finish his threat. Roper Briggs had shot from his
twisted position on the floor, and Angel buckled at the knees, striking
his shoulders against the table, and falling backwards in the center
of the room.
Roper chuckled and slid forward. The jar of the shot seemed to
shock old Rance to a semblance of himself. He peered at Lila
through the haze of powder smoke.
“Lila, why are you here?” he asked hoarsely. “What’s it all about,
anyway?”
“Angel kidnapped her, Rance,” said Slim. “He was drunk and
crazy. Langley is a prisoner, and I think Angel is dead.”
“He’s dead?” Old Rance limped forward, looking down at him.
Hashknife made a quick examination, nodding slowly.
“I’m sorry, Rance,” he said. “He can’t blame anybody.”
“Let me set down,” said Rance wearily. “Yuh see, they burned my
feet tryin’ to make me tell where the money was. But I didn’t tell.”
“Did Angel do that to yuh, Rance?”
 “Not Angel—Langley. Angel wasn’t in on it.”
“The hell he wasn’t!” snorted Fohl. “He was the one that framed it
all, Rance.”
“Yore own son,” said Hashknife.
Rance looked curiously at Hashknife.
“He—he framed it all? He thought I robbed that train? My God, I
thought he done it.”
“You thought he knocked you down and robbed you the night of
the robbery, didn’t yuh, Rance?” asked Hashknife.
“I was pretty sure he did, and I didn’t want anybody to suspect
him, so I let ’em think I done it.”
“Billy DuMond robbed you that night,” said Hashknife. “But why did
you take Angel’s I.O.U. for seventy-eight hundred, Rance?”
“I never thought about DuMond doin’ it. I—I wanted to help Angel
out. He was busted, so I took his I.O.U.”
“That’s what Langley and Angel were tryin’ to find at the Circle
Spade,” said Hashknife. “I thought it was.”
“But did you know Rance was here?” asked Sleepy.
“Suspected it, Sleepy.”
“Roper said yuh did,” said Fohl. “He was scared.”
“But Reimer and Kid Glover are in jail, Jess,” said Chuck. “They’ve
confessed to robbin’ the train. Glover killed DuMond and Corby.”
“My God!” blurted Fohl. “Old Rance didn’t know anythin’ about it—
and Langley burned his feet to make him tell.”
“It hurt like hell,” said old Rance simply. He was staring at Angel,
whose white face showed in the lamplight.
“Heredity,” he said slowly. Then he looked up at Hashknife. “Do
you believe in it, Hartley?”
“Not much.”
Lila was looking at old Rance, her eyes wide.
“I didn’t, Hartley. Jim Stevens did. He was educated, dyin’ from
consumption, but one of the whitest men God ever made. His wife
went insane. Tried to kill him. They took her to the asylum, where
she died.”
Old Rance sighed heavily and shook his head wearily.
“I’ve kept still all these years, boys, but I’m tellin’ it now. I was
broke. My wife was dead and I had a kid to take care of, so I robbed
a bank. But they blocked me, and I had to drop the money.
“I got away and headed for my shack. I knew I was caught, but I
aimed to put up a fight. As I went through the doorway, I thought they
had beat me to it. A man was there, and I shot him.”
Old Rance looked around at the tense faces of the men.
“Yeah, I shot him; It was Jim Stevens—he came to see me. Poor
old Jim—my only friend at that time. I told him what had happened
and he forgave me. He said it didn’t make any difference. I reckon I
was half-crazy. And then he asked me if they had recognized me.
“I didn’t think they had. And then he made me a proposition. Boys,
it was a sneakin’ thing to do; but I put my coat and hat on him,
strapped my belt on him, took my extra gun and fired it down through
a hole in the floor; so it wouldn’t make much noise.
“Them men was comin’. They was sure the robber went to my
cabin. But before they surrounded us, I went to the door and waved
to ’em to come on. They found old Jim on the floor. I swore I didn’t
know what it was all about; that Jim ran in on me, and we swapped
shots.
“They told me what Jim had done. They knowed he was the right
man, because of that old gray coat. They took him away, wonderin’
what would happen to Jim’s kid; but I told ’em I’d take it. They knew
old Jim was my friend, and none of ’em wanted the kid, anyway.
But old Jim had my promise before he died. I swore I’d never let
the kid know anythin’ of the truth. Jim believed in heredity. He said it
was partly a state of mind, and if the kid never knew—mebby it
would be all right. And I never told anybody, boys. I kept my oath to
old Jim Stevens. Even when things went ag’in’ me—I stuck it out.”
Lila went to him and put an arm around his shoulders.
“And they said you had no conscience,” she sobbed. “Oh, I’m so
sorry, Daddy Rance. I went away when you needed me, but I’m
going to stay with you now. I don’t believe in heredity.”
Old Rance looked up at her, his eyes wet with tears.
“I’m a damned old fool, Lila,” he said. “I sacrificed my own to keep
my word. Don’t you see what I mean, Lila? Jim Stevens’s baby was
a boy!”
For several moments no one said a word. They were trying to
understand what old Rance meant.
 “You—you mean—Angel?” whispered Lila.
Old Rance nodded quickly.
“Billy DuMond got it kinda twisted,” he said.
“I hope we can find some slippers around here; I can’t wear
boots.”
“And you can all thank Hashknife,” said Slim, looking around. “He
dug it all out for us. Where’s Hashknife?”
“Where’s Sleepy?” asked Chuck.
But nobody knew. They had tiptoed their way out, mounted their
horses, and were heading for Red Arrow, leaving the sheriff and
Chuck to mop up things. Neither of them could stand to be thanked.
They found Scotty McKay at the office, along with a dozen other
men, including Jim Parker. They were waiting some word from Slim
regarding Lila, and almost mobbed Hashknife and Sleepy for
information.
“She’s safe,” said Hashknife. “Angel McCoy and Roper Briggs are
dead; they shot each other. Angel kidnapped Lila to get back at Slim,
and upset the lamp in Parker’s house. Rance McCoy is all right.
Langley and his gang were tryin’ to force him to tell where the loot
from the express car was cached. Slim is bringin’ ’em all in, and
you’ll get the whole story from him. Was there any telegram, Scotty?”
Wonderingly Scotty handed Hashknife the telegram, which had
been sent to Slim Caldwell. It read:
PAULSEN CONFESSED ARREST REIMER GLOVER DUMOND
CONGRATULATIONS YOU WIN THE REWARD
WELLS FARGO

Hashknife grinned and handed the telegram back to Scotty.

“Well, that shore settles it,” he said. “C’mon, Sleepy.”