The Union Minister of Law and Justice recently shed light on the process of appointing judges in various high courts during a session in the Rajya Sabha. Described as a collaborative, continual, and integrated process, filling high court vacancies involves both Executive and Judiciary consultation and approval. This process is conducted at both State and Central levels.
Appointment of High Court Judges: Article 217 of The Constitution
According to Article 217 of the Constitution, a High Court Judge is appointed by the President following consultations with the Chief Justice of India (CJI), and the Governor of the concerned State. For appointing a Judge who isn’t the Chief Justice, the Chief Justice of the concerned High Court is consulted.
Consultation Process for Appointing High Court Judges
High Court judges are recommended by a Collegium consisting of the CJI and two senior-most judges. However, the proposal starts with the Chief Justice of the concerned High Court, who makes the initial recommendation after consulting with two senior-most colleagues. This recommendation is passed to the Chief Minister, who advises the Governor to forward the proposal to the Union Law Minister. The appointment of the High Court’s Chief Justice follows the policy of external appointments from respective States.
Appointment of Ad-hoc Judges
Retired judges can also be asked to serve as ad-hoc judges under Article 224A of the Constitution. With the President’s consent, the Chief Justice of a State’s High Court can request a retired judge to sit and act as a judge of the High Court. This suggestion has been recently promoted by the Supreme Court to tackle the backlog of cases in High Courts.
Evolution of the Collegium System
The Collegium system, which handles the appointment and transfer of judges, is a product of Supreme Court judgements rather than an Act of Parliament or a constitutional provision. The system changed following three significant cases: The First Judges Case (1981), the Second Judges Case (1993), and the Third Judges Case (1998). Over time, these rulings altered the relationship between the Executive and the Judiciary in judicial appointments.
Issues with the Current Appointment Process
Despite its evolution, the current appointment process faces numerous challenges. Delays in High Court judge appointments, lack of transparency in the process, improper representation within the judiciary, and high vacancy rates in High Courts are a few of the issues plaguing the system. Further, given that there are over 3.7 crore pending cases in the Indian courts, there is an urgent need for judicial reform.
Previous Attempts at Judicial Reform
Efforts to reform the system have been made in the past. For instance, in 2014, the National Judicial Appointments Commission (NJAC) was proposed to replace the Collegium system via the 99th Constitutional Amendment Act, 2014. The NJAC aimed to make the appointment process for High Court and Supreme Court judges more transparent. However, the Supreme Court declared the NJAC unconstitutional in 2015, stating that it violated the Basic Structure of the Constitution of India and posed a threat to the independence of the judiciary.
The Way Forward
An independent, permanent body to institutionalize the process, while also ensuring necessary safeguards, can help in preserving the judiciary’s independence. It should reflect diversity, demonstrate professional competence, and integrity, and ensure judicial primacy without exclusivity. Furthermore, instead of selecting judges against specific vacancies, the collegium should provide a list of potential names to the President for appointment based on preference and other valid criteria.
Last Modified: February 15, 2024