Appointment of High Court Judge

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(Querist)
27 February 2010

What is the procedure followed for appointment of a High Court Judge. Can anybody explain in detail?

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A V Vishal (Expert)
27 February 2010

Appointment and conditions of the office of a Judge of a High Court.-(1) 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.

mukesh aggarwal (Querist)
28 February 2010

Vishalji,

Will you please explain in some more details the procedure, viz. how the process begins [whether any application is invited or not], which authority initiates the process and how it is proceeded with further [the different stages and authorities which play role in the same].

Thanking you in anticipation!

adv. rajeev ( rajoo ) (Expert)
28 February 2010

No applications will be invited for appointment. Only on the basis of the merit and influence they will be appointed.

mukesh aggarwal (Querist)
28 February 2010

I expected better replies from the experts.



Guest (Expert)
01 March 2010

Mr Vishaal has rightly answered. i would like to add.....

Procedure for appointment of Judges of High Courts: The procedure for appointment of Judges of the High Courts is slightly different from the one concerning the appointment of Judges of the Supreme Court. Clause (1) of Article 217 says that “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”. A reading of this clause shows that while the appointment is made by the President, it has to be made after consultation with three authorities, namely, the Chief Justice of India, the Governor of the State and the Chief Justice of the High Court. (Of course, in the matter of appointment of Chief Justice, the consultation with the Chief Justice is not required). Just as the President is the constitutional head, so are the Governors. However, according to the practice, which had developed over the last several decades and which was in vogue till the aforementioned 1981 decision of the Supreme Court (S.P.Gupta), the Chief Justice of the High Court used to make the recommendation which was considered by the Governor of the State (Council of Ministers headed by the Chief Minister) who offered his comments for or against the recommendation. The matter then went to the Central Government. At that stage, the opinion of the Chief Justice was sought and based upon such advice, the appointment was either made or declined, as the case may be. It may be noted that even clause (1) of Article 217 uses the expression ‘consultation’ and not ‘concurrence’. The decision of the Supreme Court in S.P. Gupta on the meaning of ‘consultation’ applied equally to this Article. After the decision in S.P. Gupta, the executive made quite a few appointments to the High Courts which gave rise to a good amount of dissatisfaction among the relevant sections including the Bar leading to the nine-Judge Constitution Bench decision of the Supreme Court in 1993 aforementioned. The decision laid down that the recommendation for appointment to the High Court shall be made by the Chief Justice of the concerned High Court in consultation with his two senior-most colleagues. The opinion of the Chief Justice of India was given primacy in the matter and was to prevail over that of the Governor of the State or even that of the High Court, if inconsistent with his view. The President was of course to make the formal appointment just as in the case of a Judge of the Supreme Court. This position was affirmed in the Third Judges case (1998 (7) SCC 139).




Adinath@Avinash Patil (Expert)
02 March 2010

I AGREE WITH AJITABH AND VISHAL.

mukesh aggarwal (Querist)
09 March 2010

What is the procedure adopted by the Chief Justice in making recommendation.



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