Appointment of Chief Justice of High Courts

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    In Context

    • Recently, transfers and appointments of 13 chief justices took place to various high courts.
    • It is a step to fill up the pending vacancies by the Supreme Court Collegium led by Chief Justice N.V. Ramana.
      • The Constitution doesn’t determine the strength of HC but leaves it to the President.

    Key Points

    • Constitutional Provision for High Courts:
      • Article 214 of the Constitution of India provides that there shall be a High Court in each State.
      • Under Article 231, Parliament has the power to establish a common High Court for two or more States.
    • Eligibility of appointment as a Judge of High Courts:
      • A person to be qualified for appointment as a Judge of a High Court:
        • He must be an Indian citizen.
        • Must have served in a judicial capacity in India for at least ten years.
        • For at least 10 years, he must have worked as an advocate in a High Court or two or more such Courts in succession.
    • Appointment of HC Judges:
      • Article 217 of the Constitution:
        • It states that the Judge of a High Court shall be appointed by the President in consultation with the Chief Justice of India (CJI)and the Governor of the State.
        • In the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court is consulted.
    • Consultation Process:
      • High Court judges are recommended by a Collegium comprising the CJI and two senior-most judges.
      • The proposal, however, is initiated by the Chief Justice of the High Court concerned in consultation with two senior-most colleagues.
    • Recommendation: 
      • It is sent to the Chief Minister, who advises the Governor to send the proposal to the Union Law Minister.
    • The Chief Justice of the High Court is appointed as per the policy of having Chief Justices from outside the respective States.
    • Ad-hoc Judges
      • The appointment of retired judges is provided in the Constitution under Article 224A.
      • Under the Article, the Chief Justice of a High Court for any State may at any time, with the previous consent of the President, request any person who has held the office of judge of that court or of any other High Court to sit and act as a judge of the High Court for that State.

    Collegium System

    • It is the system of appointment and transfer of judges that has evolved through judgments of the SC, and not by an Act of Parliament or by a provision of the Constitution.

    Criticism of the Collegium System:

    • Opaqueness and a lack of transparency.
    • Scope for nepotism.
    • Embroilment in public controversies.
    • Overlooks several talented junior judges and advocates.

    Attempts to reform the Appointment System:

    • In 2014 Government brought the 99th Constitutional Amendment Act, the National Judicial Commission Act (NJAC) to replace the collegium system for the appointment of judges.
    • In 2015, a five-judge Constitution Bench declared them unconstitutional on the ground that they posed a threat to the independence of the judiciary.
    • Bench declared that judges’ appointments shall continue to be made by the collegium system in which the CJI will have “the last word”.

    Issues Involved in Judiciary

    • Vacancy in High Courts:
      • The total sanctioned strength of judges across the 25 high courts is 1,098 but the working strength is only 645, a shortfall of 453 judges.
    • High Pendency of Cases:
      • The total pendency of cases in the several courts of India at different levels sums up to a total of about 3.7 crores thus increasing the demand for a better and improved judicial system.
    • Cumbersome Process:
      • The delays in the appointment of High Court judges affect the justice delivery mechanism.
    • Lack of transparency:
      • Presently, there is no structured process to investigate if a judge who is recommended by the collegium has any conflict of interests.
    • Improper Representation:
      • The collegium system tends to favour particular sections of society and is far from being representative of the population for whom it seeks to deliver justice.

    Conclusion

    • The current step by the government is a collaborative process involving both the executive and the judiciary important for fulfilling up the vacancies.
    • But, a permanent, independent body to institutionalize the process with adequate safeguards to preserve the judiciary’s independence is required.
    • Instead of selecting the number of judges required against a certain number of vacancies, the collegium must provide a panel of possible names to the President to appoint in order of preference and other valid criteria.

    Source: LM