Appointment of Judges in High Court

Source: Delhi High Court 

Why in News? 

Recently, the Delhi High Court in the matter of CA Rakesh Kumar Gupta v. Supreme Court of India Through Secretary General has held that reason of rejection by the Supreme Court Collegium of the recommendation of High Court collegium for the elevation of Judges to High Court will not be in the good interest of the judges whose names have been rejected by the Supreme Court. 

What was the Background of the CA Rakesh Kumar Gupta v. Supreme Court of India Through Secretary General Case? 

• In this case the petitioner had a pending case in the District Court of Delhi which led him to file a writ petition before the Single Judge Bench. 
• The petitioner contented that the reason for non-appointment of judges should be given by the Supreme Court. 
• He argues that due to lack of judges in the country there is a pendency of cases.  
• The petitioner stated that he has locus standi to file a writ petition. 
• The learned single judge bench dismissed the writ because of absence of locus standi and imposed a fine on the petitioner. 
• In pursuant to the impugned judgement the petitioner filed an appeal before the Delhi High Court.  

What were the Court’s Observations? 

• The court stated that the appointment of judges has two aspects, one is eligibility, and the other is suitability. 
• Eligibility is to be determined as per Article 217 of the Constitution of India (COI) while suitability is to be determined in consultation and observations. 
• Further it was added that the revelation of reason for non-appointment of judges whose names were referred by the High Court would be detrimental to their interest. 
• Based on this the Delhi High Court upheld the decision of Single Judge and held that the petitioner has no locus standi to file a writ. 

What is Article 217 of the Constitution of India (COI)? 

• Appointment and conditions of the office of a Judge of a High Court: 
  • Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court, and [shall hold office, in the case of an additional or acting Judge, as provided in article 224, and in any other case, until he attains the age of  [sixty-two years]]:  
  • Provided that—  
    • a Judge may, by writing under his hand addressed to the President, resign his office.  
    • a Judge may be removed from his office by the President in the manner provided in clause (4) of article 124 for the removal of a Judge of the Supreme Court. 
    • the office of a Judge shall be vacated by his being appointed by the President to be a Judge of the Supreme Court or by his being transferred by the President to any other High Court within the territory of India.  
  • A person shall not be qualified for appointment as a Judge of a High Court unless he is a citizen of India and—  
    • has for at least ten years held a judicial office in the territory of India; or (b) has for at least ten years been an advocate of a High Court or of two or more such Courts in succession; 
  • Explanation. —For the purposes of this clause—  
    • in computing the period during which a person has held judicial office in the territory of India, there shall be included any period, after he has held any judicial office, during which the person has been an advocate of a High Court or has held the office of a member of a tribunal or any post, under the Union or a State, requiring special knowledge of law. 
    • in computing the period during which a person has been an advocate of a High Court, there shall be included any period during which the person 3 [has held judicial office or the office of a member of a tribunal or any post, under the Union or a State, requiring special knowledge of law] after he became an advocate. 
    • in computing the period during which a person has held judicial office in the territory of India or been an advocate of a High Court, there shall be included any period before the commencement of this Constitution during which he has held judicial office in any area which was comprised before the fifteenth day of August, 1947, within India as defined by the Government of India Act, 1935, or has been an advocate of any High Court in any such area, as the case may be.  
  • If any question arises as to the age of a Judge of a High Court, the question shall be decided by the President after consultation with the Chief Justice of India and the decision of the President shall be final.] 

What is the Landmark Judgement Referred in the Present Case? 

• Supreme Court Advocates-on-Record Association and Others v.  Union of India (1993): In this case the Supreme Court held that purview of judicial reviw is open for appointment but as many judges constitute for a collegium it bars the scope of any arbitrariness and offers fair procedure.