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Appointment of Judges of High Court

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 11-Sep-2024

Source: Indian Express 

Introduction 

  • Recently, the Supreme Court directed the Himachal Pradesh High Court collegium to consider again the names of two judicial officers it had recommended for elevation.  
  • There is no mention of collegium system in the Constitution of India, 1950 (COI). 
  • The Collegium system has been evolved by the Supreme Court through the judicial pronouncements. 

How did Collegium System Evolve?

Case Name Held
S.P. Gupta v. Union of India (1981)
    • Also, known as First Judges Case. 
    • Delivered by a Seven-Judge Bench by a majority of 4: 3. 
    • It was held that the word “consultation” in Article 124 of COI does not mean “concurrence”. 
    • The ruling gave the Executive primacy over the Judiciary in judicial appointments. 
Supreme Court Advocates-on-Record Association v. Union of India (1993)
    • Also, known as Second Judges Case. 
    • Delivered by a Nine-Judge Bench by a 7:2 majority. 
    • The First Judges case was overruled. 
    • The Collegium System was introduced and the word “consultation” was read as “concurrence”. 
    • The ruling gave primacy to the opinion of Judiciary over Executive.  
In Re Presidential Reference (1998)
    • Also, known as the Third Judges Case. 
    • The President KR Narayanan issued a Presidential Reference to the Supreme Court over the meaning of “consultation” used in Article 124 and Article 217 of COI. 
    • The Court held that “consultation with the Chief Justice of India” requires consultation with a plurality of judges. 
    • This judgment further modified the collegium system. 

How Does Collegium System Function?

Appointment Consultation
Appointment of Judge of Supreme Court  4 Senior most Judges of the Supreme Court 
Appointment of Judge of High Court  2 Senior most Judges of the Supreme Court
Transfer of Judge of High Court  4 Senior most judges of Supreme Court along with the judges of the two High Courts.

What is the Memorandum of Procedure Detailing the Procedure of Appointment of High Court Judges? 

  • In 1998, the Centre entered into a Memorandum of Procedure which detailed the procedure from the beginning for the appointment of the High Court judges. 
  • As a part of this process: 
    • The Chief Justice must consult two other senior most judges at the High Court forming the collegium. 
    • They shall send their recommendations with reasons to the Chief Minister, the Governor and the Chief Justice of India. 
    • The Governor based on the advice of the Chief Minister will send the proposal to the Minister of Law and Justice at the Centre. 
    • The Minister of Law and Justice will conduct a background check and send the entire material to the Chief Justice of India. 
    • The Chief Justice of India will consider it with the rest of the Supreme Court Collegium. 

When Can the Recommendations of the Collegium be Challenged? 

  • The limited grounds on which recommendations could be challenged are: 
    • There was a lack of “effective consultation” with any of the individuals or institutions. 
    • The candidate in question was not “eligible” to be judge – these qualifications are laid down in Article 217 (for High Court) and Article 124 (for Supreme Court).
Provision Grounds for Eligibility

Article 124 (3): 

Supreme Court 
    • Citizen of India 
    • At least five years Judge of a High Court or two or more such Courts in succession; or 
    •  At least ten years an Advocate of a High Court or two or more such Courts in succession; or 
    • In the opinion of President a distinguished jurist   

Article 217 (2): 

High Court 
    • Citizen of India 
    • Has for at least 10 years held a judicial office in the territory of India; or 
    • Has for at least 10 years been an dvocate of a High Court or two or more such Courts in succession.  

What are the Demerits of Collegium System? 

  • The Collegium System lacks transparency and is criticized for it’s opaqueness. 
  • There is an issue of nepotism that creeps into the collegium system. A person who is in relation to a judge has more chances of elevation. 
  • There is no permanent commission for appointment of judges which has lead to inefficiency in appointment of judges.  

Conclusion 

  • The Collegium System that has evolved by way of judicial pronouncements is the procedure for appointment of judges in High Courts and Supreme Court in India. 
  • There are indeed certain loopholes in the procedure which should be addressed.