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Appointment of High Court Judges

Introduction:

“We need leaders not in love with money but in love with justice, not in love with publicity but love with humanity”  – MARTIN LUTHER KING JR

Judges are also human beings like us. They do have a part in them that is a full bundle of passions and prejudices, likes and dislikes affection and ill will, hatred and contempt, and fear and carelessness. These elements should be curbed and kept under control to be a successful Judge, and this is only possible through education, training, continued practice, and by cultivating a sense of humility and commitment to duty. It is the inner power of the Judges alone that can save the judiciary. The life of a Judge does not call for great acts of self-sacrifice, but it insists on small acts of self-denial mostly every day. Let us see how the High Court Judges are appointed in the Indian Judiciary.

Appointment of High Court Judges:

In every High Court, there is a Chief Justice and several other Judges whose number is determined by the Indian President. According to Article 217 of the Indian Constitution, every Judge of a High Court is appointed by the President in consultation with the Chief Justice of India, the Governor of the State, and the Chief Justice of the High Court. The President after consultations with the Chief Justice of India for transferring Judges from one High Court to another High Court is done under Article 222 (1) of the Indian Constitution[1].

Qualifications for High Court Judges:

One of the prime qualifications of a High Court Judge is that he/she should be a citizen of India. So, the next qualification that is required is, he/she should have been a Judge for 10 years of Subordinate Court under the Judicial Service of the State or else he/she should have practiced as an Advocate for 10 years in High Courts or of two or more Courts in succession in India (Article 217 (2))[2].

Status of Additional Judges:

According to Article 224 of the Indian Constitution, an additional or acting Judge is appointed. An Additional Judge cannot be equated for all purposes with the sitting Judge. For appointing a Judge, the Union of India is the ultimate authority to approve the recommendations. The opinion, which is taken regarding the appointment of an Additional Judge by the CJI without consultation of the Collegium, cannot be sustained. If there were a fact that makes an additional Judge unfit for appointment as a permanent Judge, it would not only be inappropriate but also undesirable to continue as an additional Judge.

Family Court Judges cannot be elevated to the High Court:

According to Article 217 of the Constitution of India, the appointment of High Court Judges, the Judges are selected from the member of the bar and amongst the person who held the ”Judicial office” for not less than ten years. Even the subordinate judicial officer who is inferior to the District Judge can be appointed as the Judge of High Court. In a generic scene, the word “Judicial office” may include a wide variety of office, which is bonded, with the administration of justice in one or the other way. Under the Criminal Procedure Code 1973, the powers of a judicial magistrate may be bestowed on any person who holds or has held any office under the government. Officers holding different positions within the executive are often given the powers of a magistrate to deal with a particular situation. Article 217(2) (a) referred that the holder of the “Judicial office” means a person who exercises only judicial functions, determines inter-party cases and makes decisions in a judicial capacity. He ought to belong to the judicial service free from executive control and he should uphold the dignity, integrity, and importance of Judiciary. Owing to the reasons for limited exposure available to the Presiding Officers of the Family Court, it is not possible for a Family Court Judge to be eligible as the Judge of a High Court according to Article 217(2) (a) of the Indian Constitution. The Principal and other Judges of the Family Court may be the ‘Judges’ presiding over these courts in their ‘generic sense,’ but they cannot be an integral part of the State’s ‘judicial service’ as specified in Article 236 nor do they hold a ‘judicial office’ as contemplated by Article 217 of the Indian Constitution. Therefore, they have no jus legitimum to be elevated to the High Court.[3]

 Collegium System over NJAC:

The NJAC (National Judicial Appointment Commission) Bill 2014 established a commission that introduced NJAC. The President gave his assent to the bill on 31 December 2014 and the government declared it on 13 April 2015 as NJAC Act. NJAC consisted of the CJI as a Chair Person, two senior-most Judges of the Supreme Court, Law and Justice Minister, and two Eminent Persons will be selected by the Committee, which consisted of CJI, Prime Minister, and Leader of Opposition Party. NJAC, then, was responsible for appointing and transferring Judges in the Indian judicial system appointment of the Chief Justice of India, Judges of Supreme Court, Chief Justice and other Judges of High Court was to be handled by the NJAC as per the NJAC Act. The NJAC Bill aimed to replace the method of nominating Supreme Court and High Court Judges with a commission in which the executive will have a part in selecting the Judges. The Act was challenged in the Supreme Court in various Public-Interest Litigations.

The issue was taken before Five Judge Constitutional Bench, which had Justice JS Khehar as a Presiding Judge. Honorable Judge ruled that the wisdom of appointment of Judges would be difficult if shared with the Political and Executive bodies. He further affirmed that the supreme duty of the Judiciary is uphold the interests of the people and the same can be assured only if it is completely separate and autonomous from the other Government bodies. On 16 October 2015, the Supreme Court ruled in a 4-1 majority decision that both the Constitution (Ninety-ninth Amendment) Act, 2014, and the National Judicial Appointments Commission (NJAC) Act, 2014 were ‘unconstitutional and void’ since it attempted to weaken the independence of the judiciary. The Court held that the appointment of Judges, together with the primacy of the judiciary and the CJI, was a part of the constitution’s basic framework, and that the parliament violated this fundamental structure through the NJAC act[4].

 Judicial Review of appointment of High Court Judges:

Under Article 217of the Constitution of India, Judicial Review of appointment of High Court Judges is permissible under two grounds, namely: lack of eligibility and lack of effective consultation. Once a High Court Judge is appointed without requisite eligibility, a writ of Quo-Warranto can be filed against the Judge to remove him/her and to have an effect in that regard. Similarly, on a lack of effective consultation, the appointment of a High Court Judge can be challenged. However, there is an exception to the above-said statement. If it is concrete that, there was no means by which certain facts regarding the appointment were not known to the authorities involved in the consultative process or to the putative appointee then cannot vitiate the consultative process for such a mistake. For example, a High Court Judge has been appointed but an FIR was filed by the police in relation to a criminal case during his college days, both the Judge and the authorities involved in the consultative process did not know this fact beforehand. Therefore, the same cannot be termed as effective consultation. In other words, if a Judge appointed to the High Court knows his involvement in a criminal case and he deliberately did not disclose it then when the authorities involved in the consultative process find out that the said Judge deliberately failed to disclose the pending of criminal case, it amounts to fraud and it vitiates the appointment itself[5].

Article 217 cannot be read with Article 165:

The person who is appointed as the Judge of High Court under Article 217 of the Indian Constitution shall hold the office until he attains the age of sixty-two years. Article 165(1) says that a person who is qualified to be a Judge of a High Court can be appointed as the Advocate General. Article 165(3) of the Constitution says about the tenure of the Advocate General, he/she can continue to hold the office as long as the Governor desires so. A Public Interest Litigation was filed under Article 217(1) read with Article 165(3) that Advocate General cannot hold the office at or after the age of sixty-two years. The court in the case, State Of Uttaranchal Vs Balawant Singh Chaufal & Ors on January 2010 observed that Article 217(1) cannot be read with Article 165(3) because that the Advocate General shall hold the office during the pleasure of the Governor. This provision does not mention any particular age, as in the case of a Judge and further ruled that Article 217 is not applicable to Advocate General.[6]

Conclusion:                                                                                                                                       

“JUSTICE DELAYED IS JUSTICE DENIED”

The said legal maxim says that delayed justice in hard times would of no use, so there should be speedy justice to the people who are in need of it. The functioning of any system is a continuous process and every organization is endeavoring to improve the functioning of its system in a manner that is appropriate to the circumstances. Improving the functioning of the system is always the goal of every system, and all organizations are committed. JALDI — Justice, Access, and Lowering Delays in India should be the slogan of the Indian Judicial System as it turns 70 this year. This requires a multi-year mission with all the stakeholders’ viz., successive Chief Justice, Judges, Governments (Central and State), Lawyers, Registry staff, Researchers, and Academics. We must all work together to ensure the litigants have quicker access to Justice.

Shobika Kannan,

SASTRA Deemed University.

Citations:

[1] Indian Kanoon, article 217 in the Constitution Of India,1949, https://indiankanoon.org/doc/1682952/

[2] Indian Kanoon, Article 217(2) in the Constitution Of India, 1949, https://indiankanoon.org/doc/37564/

[3] Indian Kanoon, S.D.Joshi & Ors vs High Court of Judicature at Bombay, SCC 252 (283): AIR 2011 SC 848: AIR SCW 1160.

[4] Indian Kanoon, Supreme Court vs Union Of India on 16 october,2015, https://indiankanoon.org/docfragment/66970168/?formInput=NJAC

[5] India Kanoon, Manohar Reddy vs. union of India, AIR 2013 SC 795, https://indiankanoon.org/doc/40471056/

[6] Indian Kanoon, State Of Uttaranchal vs Balwant Singh Chaufal & Ors on 18 January, 2010, https://indiankanoon.org/doc/161999/

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