THE NATIONAL UNIVERSITY OF ADVANCED LEGAL STUDIES

(A State University Est. by Act 27, 2005 of Kerala State Legislature)

Kalamassery, Kochi - 683503, Kerala

CONSTITUTIONAL LAW PROJECT

APPOINTMENT OF JUDGES TO HIGH COURTS
SEMESTER-4

Submitted By:

Sooryanarayanan T J (1704)
B.A. LL. B. (Hons.),
The National University of Advanced Legal Studies (NUALS)

Submitted To:

Dr. Jacob Joseph

Constitutional Law Faculty in charge
The National University of Advanced Legal Studies (NUALS)

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 TABLE OF CONTENTS

INTRODUCTION .......................................................................................................................... 3

Constitutional Provisions ................................................................................................................ 3

Article 224 of the Indian Constitution ........................................................................................ 4

Appointment of Judges to High Courts in Pre-Independence and Post-Independence India: A

Comparative Analysis ..................................................................................................................... 4

Historical Context ....................................................................................................................... 5

Appointment Process in Pre-Independence India ....................................................................... 5

Comparative Analysis ..................................................................................................................... 6

Role of Various Institutions in the appointment of judges ............................................................. 8

The President of India ................................................................................................................. 8

The Chief Justice of India (CJI) .................................................................................................. 8

The Governor and Chief Justice of the concerned High Court ................................................... 8

The Collegium System ................................................................................................................ 8

criticisms against the collegium system ...................................................................................... 8

Landmark Case Laws Regarding Appointment of High Court Judges........................................... 9

80th Law Commission Report ....................................................................................................... 13

Recommendations for Reform .................................................................................................. 14

Conclusion .................................................................................................................................... 15

ACKNOWLEDGEMENT ............................................................................................................ 15

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 INTRODUCTION

The judiciary in India plays a pivotal role in upholding the rule of law and ensuring justice to the
citizens. The High Courts, as the apex judicial institutions in the states and union territories, have
immense responsibilities in interpreting the constitution, adjudicating disputes, and maintaining
the sanctity of the legal system. The appointment of judges to these High Courts is, therefore, a
matter of great importance, as it directly impacts the functioning and effectiveness of the judiciary.

CONSTITUTIONAL PROVISIONS

The appointment of judges to the High Courts in India is governed by Article 217 of the Indian
Constitution. According to this provision, the President of India appoints the Chief Justice and
other judges of the High Courts after consultation with the Chief Justice of India (CJI), the
Governor of the concerned state, and the Chief Justice of the concerned High Court (in case of
other judges' appointments). The eligibility criteria for the appointment include:

1. A person must be a citizen of India.

2. A person must have held a judicial office in the territory of India for at least ten years or
been an advocate of a High Court for at least ten years.

It covers multiple aspects such as the qualifications, appointment process, age of retirement, and
possibility of removal. The Article is divided into different clauses, which are discussed below:

Clause (1): A Judge of a High Court shall be appointed by the President of India. The President
shall consult the Chief Justice of India, the Governor of the concerned State, and, in the case of
appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court to which
the appointment is being made.

Clause (2): To be qualified for appointment as a Judge of a High Court, a person must be a citizen
of India and have held a judicial office in India for at least ten years, or have been an advocate of
a High Court (or of two or more such Courts in succession) for at least ten years.

Clause (3): Every person appointed to be a Judge of a High Court shall, before entering upon his
office, make and subscribe before the President, or some person appointed in that behalf by him,
an oath or affirmation according to the form set out for the purpose in the Third Schedule.

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Clause (1A): A Judge of a High Court shall hold office until he attains the age of sixty-two years.
However, a Judge may resign his office by writing to the President, or he may be removed from
his office by the President in the manner provided in clause (4).

Clause (4): A Judge of a High Court can be removed from his office by the President upon an
address by both Houses of Parliament, supported by a majority of the total membership of the
House and by a majority of not less than two-thirds of the members of that House present and
voting, on the grounds of proved misbehavior or incapacity.

Article 224 of the Indian Constitution

Article 224 is concerned with the appointment of additional and acting Judges of High Courts. It
is meant to address temporary increases in the workload of a High Court or to fill temporary
vacancies. This Article is also divided into different clauses:

Clause (1): If at any time it appears to the President that the number of Judges of a High Court
should be increased, whether permanently or for a temporary period, the President may appoint
duly qualified persons as additional Judges of the Court for such period as he may specify.

Clause (2): When a Judge of a High Court (other than the Chief Justice) is temporarily unable to
perform the duties of his office on account of absence, illness, or any other cause, the President
may appoint a duly qualified person to act as a Judge of that Court until the regular Judge is able
to resume his duties.

Clause (3): An additional or acting Judge shall perform the duties of a Judge as assigned by the
Chief Justice of the High Court and shall be entitled to the same salary, allowances, and other
benefits as a regular Judge.

APPOINTMENT OF JUDGES TO HIGH COURTS IN PRE-

INDEPENDENCE AND POST-INDEPENDENCE INDIA: A
COMPARATIVE ANALYSIS

The appointment of judges to the High Courts in India has undergone several changes since the
pre-independence period. The Indian judiciary has evolved over time, and the process of

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appointing judges has been influenced by various historical, political, and social factors. This essay
provides an in-depth analysis of the appointment of judges to the High Courts in pre-independence
India and draws a comparison with the appointment of judges in the post-independence era. The
essay is divided into four sections: the historical context, the appointment process in pre-
independence India, the appointment process in post-independence India, and a comparative
analysis.

Historical Context

The establishment of the High Courts in India dates back to the colonial era. The British established
the first High Courts in 1862 under the Indian High Courts Act, 1861, in the presidency towns of
Calcutta, Bombay, and Madras. These courts replaced the Supreme Courts in those towns and the
Sadar Diwani Adalats and Sadar Nizamat Adalats in the respective provinces. The fourth High
Court in India, the Allahabad High Court, was established in 1866. The High Courts were vested
with original and appellate jurisdiction in civil and criminal matters.

The Government of India Act, 1915, and later the Government of India Act, 1935, provided a legal
framework for the governance of British India, including the functioning of the High Courts. The
1935 Act introduced the concept of "Federation of India," which included British Indian provinces
and Indian states. It also provided for the establishment of a Federal Court, which was set up in
1937.

Appointment Process in Pre-Independence India

In the pre-independence era, the appointment of judges to the High Courts was largely controlled
by the British Crown. The process was influenced by the colonial administrative structure and the
desire to maintain British control over the judiciary.

• Appointment Authority: Under the Indian High Courts Act, 1861, the power to appoint
judges was vested in the British Crown. The appointment process involved the Secretary
of State for India, who acted on behalf of the Crown, and the Viceroy and Governor-
General of India, who provided recommendations.
• Eligibility Criteria: The eligibility criteria for the appointment of judges were laid down in
the Indian High Courts Act, 1861, and subsequently in the Government of India Act, 1915,

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 and the Government of India Act, 1935. The judges were required to be barristers or
advocates with a certain number of years of experience or members of the Indian Civil
Service with judicial experience. The minimum age for appointment was 35 years, and the
judges were required to retire at the age of 60.
• Tenure and Removal: The tenure of High Court judges was determined by the British
Crown. Judges held office during the pleasure of the Crown and could be removed on
grounds of misbehavior or incapacity. The removal process involved an address by both
Houses of the British Parliament, followed by an order of the Crown.

COMPARATIVE ANALYSIS

The appointment process of judges to the High Courts in pre-independence and post-independence
India reflects the changing political and constitutional landscape of the country. The following
points highlight the key differences:

• Appointment Authority: The most significant change is the shift in the appointment
authority from the British Crown to the President of India. This shift represents the transfer
of power from the colonial rulers to the sovereign Indian state.
• Consultation Process: In the post-independence era,the appointment process involves
consultation with various authorities, including the Chief Justice of India, the Governor of
the concerned state, and the Chief Justice of the concerned High Court. This ensures that
the process is more democratic and reflects the federal nature of the Indian polity.

• Eligibility Criteria: The eligibility criteria for the appointment of judges have also evolved
over time. In the pre-independence era, the criteria were largely based on the British model,
with a focus on barristers and advocates, as well as members of the Indian Civil Service
with judicial experience. In the post-independence period, the Constitution of India
emphasizes judicial office and legal practice as the primary qualifications, ensuring a
broader pool of candidates and greater representation of the Indian legal profession.

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 • Tenure and Removal: The tenure and removal provisions have also been modified to ensure
greater security of tenure and independence of the judiciary. While judges in the pre-
independence era held office during the pleasure of the Crown, judges in the post-
independence era hold office until the age of 62, subject to removal on specific grounds
through a defined process involving both Houses of Parliament.

• Judicial Independence: In the post-independence era, the appointment process and the
constitutional framework have been designed to ensure the independence of the judiciary.
The consultation with various authorities, the security of tenure, and the removal process
ensure that the judiciary remains insulated from undue political influence and maintains its
autonomy.

• Diversity: The post-independence era has also witnessed greater diversity in the
appointment of judges to the High Courts. The broadened eligibility criteria have allowed
for the appointment of judges from various backgrounds, including different regions,
religions, and social groups. This diversity is essential for a robust and representative
judiciary in a diverse and pluralistic country like India.

The appointment of judges to the High Courts in India has come a long way since the pre-
independence era. The evolution of the appointment process reflects the development of the Indian
judiciary from a colonial institution to a sovereign and independent organ of the Indian state. While
the post-independence appointment process has made significant strides in ensuring judicial
independence, diversity, and representation, there remain challenges and areas for improvement.
Continued efforts to refine and strengthen the appointment process will be crucial to maintaining
the integrity, independence, and effectiveness of the Indian judiciary

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 ROLE OF VARIOUS INSTITUTIONS IN THE APPOINTMENT OF
JUDGES

The President of India

As mentioned earlier, the President of India is the authority responsible for appointing High Court
judges. However, the President acts on the advice of the Union Council of Ministers, which means
that the appointment process is influenced by the executive branch.

The Chief Justice of India (CJI)

The CJI's consultation is mandatory in the appointment process as per the Constitution. The CJI
plays a crucial role in ensuring that the appointments are based on merit and meet the required
qualifications.

The Governor and Chief Justice of the concerned High Court

The Governor of the concerned state and the Chief Justice of the concerned High Court are also
required to be consulted in the appointment process. Their opinions hold significant weight in the
final decision.

The Collegium System

The current appointment process is primarily driven by the Collegium System, which emerged as
a result of the Three Judges Cases (1981, 1993, and 1998). According to this system, a collegium
comprising the CJI and the four senior-most judges of the Supreme Court recommends
appointments and transfers of High Court judges. The President is bound to accept the
recommendations of the collegium, as reiterated by the Supreme Court in the Third Judges Case
(1998).

criticisms against the collegium system

The Collegium System has been a subject of intense debate and criticism since its inception. Some
of the key concerns raised by various stakeholders include:

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1. Lack of transparency: The Collegium System operates behind closed doors, with no clearly
defined criteria for appointments. This has led to allegations of favoritism and nepotism in the
appointment process.

2. Accountability: There is no mechanism to hold the collegium accountable for its decisions. This
has raised concerns about the independence and integrity of the judiciary.

3. Executive interference: The role of the executive in the appointment process has been a
contentious issue. Critics argue that the current system allows for politicization of judicial
appointments and undermines the independence of the judiciary.

4. Backlog and vacancies: The current appointment process has been criticized for being slow and
inefficient, leading to a high number of vacancies in the High Courts. This, in turn, contributes to
the backlog of cases and delays in the justice delivery system.

LANDMARK CASE LAWS REGARDING APPOINTMENT OF HIGH

COURT JUDGES

• The Supreme Court Advocates-on-Record Association vs Union of India case, also

known as the Second Judges Case, is a landmark judgment delivered by the Supreme Court
of India on 6th October 1993. The case dealt with the issue of judicial appointments and
the role of the executive in the process. The Constitution of India provides for a system of
appointment of judges to the higher judiciary, including the Supreme Court and the High
Courts. Article 124 and Article 217 of the Constitution provide for the appointment of
judges to the Supreme Court and the High Courts respectively. Earlier, the appointment of
judges was largely in the hands of the executive, with the Chief Justice of India having
only a consultative role. However, over the years, concerns were raised about the
involvement of the executive in the appointment process and the need for greater
independence of the judiciary. In 1982, the Supreme Court delivered a judgment in the
First Judges Case, which held that the opinion of the Chief Justice of India should have
primacy in the appointment of judges. However, this judgment did not completely solve
the issue, as it still left room for executive interference. The Supreme Court Advocates-on-

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 Record Association filed a writ petition challenging the appointment of judges to the
Supreme Court and the High Courts. The main issue before the court was whether the
executive had the power to make appointments to the higher judiciary, or whether the
judiciary should have a greater say in the process.
In its judgment, the Supreme Court overruled the First Judges Case and held that the
opinion of the Chief Justice of India should be given primacy in the appointment of judges.
The court also held that the appointment process should involve a collegium of judges,
including the Chief Justice of India and the four senior-most judges of the Supreme
Court.The court further held that the executive's role in the appointment process should be
limited to providing information and background checks on the candidates being
considered for appointment. The court also laid down guidelines for the appointment of
judges, including the need for transparency and the consideration of merit and diversity in
the appointment process.
The Second Judges Case had a significant impact on the appointment of judges to the
higher judiciary in India. It established the supremacy of the judiciary in the appointment
process and limited the role of the executive in the process. The collegium system
established by the judgment has been followed for the appointment of judges to the
Supreme Court and the High Courts since then, with some modifications introduced by
later judgments. However, there have been criticisms of the collegium system, including
concerns about lack of transparency and accountability in the appointment process.
• In the case of Supreme Court Advocates-on-Record Association vs Union of India
(1998), the Supreme Court of India laid down guidelines for the appointment of judges to
the High Courts and the Supreme Court. The guidelines included the following:
➢ Transparency: The appointment process should be transparent, and information
about the appointment should be made available to the public.
➢ Merit-based appointments: The appointment of judges should be based on merit,
and the best candidates should be selected based on their ability, integrity, and
experience.
➢ Consultation: The Chief Justice of India should consult with other senior judges
before making a recommendation for the appointment of a judge.

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 ➢ Regional representation: The appointment of judges should take into account
regional representation to ensure that all regions of the country are adequately
represented on the bench.
➢ Diversity: The appointment of judges should take into account diversity, including
gender, caste, and religion, to ensure that the bench reflects the diversity of the
Indian population.
Adequate representation of different branches of the legal profession: The appointment of
judges should ensure adequate representation of different branches of the legal profession,
including the bar, the judiciary, and the academia.The Supreme Court emphasized that the
guidelines should be followed strictly to ensure that the appointment of judges is fair and
transparent. The guidelines were intended to ensure that the appointment process is free
from political interference and that the best candidates are selected based on their merit
and ability.

• In the case of Ashok Kumar Pandey vs The State of West Bengal (2004), the Supreme
Court of India emphasized the importance of judicial independence in the appointment of
judges to the High Courts. The court held that the executive should not have a veto power
in the appointment of judges and that the judiciary should have the final say in the
appointment process.
The court also held that the appointment of judges should be based on their merit, integrity,
and experience, and that the judiciary should be involved in the appointment process to
ensure that the best candidates are selected. The court noted that the judiciary plays a
critical role in protecting the rights of citizens and upholding the rule of law, and that
judicial independence is essential to maintaining public confidence in the judiciary.

The court further emphasized that the appointment of judges should be free from political
interference and that the executive should not have any role in the appointment process,
other than providing necessary information and documents to the judiciary. The court held
that the judiciary should have the final say in the appointment process, and that any

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 interference from the executive or any other outside influence could undermine the
independence of the judiciary.

• The Supreme Court Advocates-on-Record Association vs Union of India case of 2015,

also known as the National Judicial Appointments Commission (NJAC) case, was another
landmark judgment delivered by the Supreme Court of India. The case dealt with the
validity of the 99th Constitutional Amendment and the NJAC Act, which sought to replace
the collegium system of judicial appointments with a new system.1
The collegium system of judicial appointments, established by the Second Judges Case in
1993, gave the judiciary a greater role in the appointment of judges to the higher judiciary.
However, over the years, concerns were raised about the lack of transparency and
accountability in the collegium system.To address these concerns, the government of India
proposed the NJAC Act, which sought to create a new system of judicial appointments.
The NJAC would consist of six members, including the Chief Justice of India, two senior-
most judges of the Supreme Court, the Union Minister of Law and Justice, and two eminent
persons nominated by a committee consisting of the Prime Minister, the Chief Justice of
India, and the Leader of the Opposition in the Lok Sabha.
The Supreme Court Advocates-on-Record Association, along with other petitioners,
challenged the constitutional validity of the NJAC Act and the 99th Constitutional
Amendment, which sought to introduce the new system of judicial appointments.
In its judgment, the Supreme Court struck down the NJAC Act and the 99th Constitutional
Amendment, citing concerns about the independence of the judiciary and the potential for
executive interference in the appointment of judges.2 The court held that the collegium
system, with some modifications, should continue to be the system for the appointment of
judges to the higher judiciary. 3The court also laid down guidelines for the functioning of

1
The National Judicial Appointment Commission – A Critique - Trials -https://www.mondaq.com/india/trials-amp-
appeals-amp-compensation/647748/the-national-judicial-appointment-commission--a-critique
2
Memorandum of procedure: Behind the scenes, Govt and SC in tug of war ....
https://indianexpress.com/article/india/india-news-india/supreme-court-high-court-judge-appointment-procedure-
criteria-collegium-government-judiciary-2914823/
3
Supreme Court Strikes Down NJAC As "Unconstitutional" - BYJU'S. https://byjus.com/free-ias-prep/sc-bench-
strikes-down-njac-act-as-unconstitutional-and-void/

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 the collegium system, including the need for greater transparency and accountability in the
appointment process. The court directed the government to draft a new Memorandum of
Procedure (MoP) for the functioning of the collegium system in consultation with the Chief
Justice of India.
The NJAC case had a significant impact on the appointment of judges to the higher
judiciary in India. It reaffirmed the independence of the judiciary and the importance of the
collegium system in ensuring that appointments are made on the basis of merit and
integrity. The judgment also highlighted the need for greater transparency and
accountability in the functioning of the collegium system, which led to the government and
the judiciary working together to draft a new MoP.4

80TH LAW COMMISSION REPORT

The 80th Law Commission Report, published in October 1979, is titled "Article 217(1A) of the
Constitution of India – Consultation with Chief Justice of India – Recommendations for
appointment to High Court Judges – Proposal for amending Article 217(1A) of the Constitution."
The report examines the process of consultation with the Chief Justice of India in the appointment
of High Court Judges, as well as the proposal for amending Article 217(1A).

The report emphasizes the importance of preserving the independence of the judiciary and the need
for a transparent and objective process of appointment of High Court Judges. The Law
Commission recommended the following amendments to Article 217(1A):

The President should consult the Chief Justice of India, the Governor of the concerned State, and
the Chief Justice of the concerned High Court before making any appointment to the High Court.

The Chief Justice of India should consult at least two other senior Judges of the Supreme Court
before making any recommendations to the President for the appointment of High Court Judges.

The President should not appoint a person as a Judge of a High Court if the Chief Justice of India,
after consultation with his colleagues, has not recommended such a person for appointment

4
SC Bench strikes down NJAC Act as ‘unconstitutional and void’.
https://www.thehindu.com/news/national/Supreme-Court-verdict-on-NJAC-and-Collegium-
system/article60384480.ece

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These recommendations aimed at ensuring a more transparent and objective process of
appointment, with greater involvement of the Chief Justice of India and other senior Judges of the
Supreme Court, to maintain the independence and integrity of the judiciary.

Recommendations for Reform

To address the concerns and shortcomings of the current appointment process, several
recommendations have been proposed. Some of the key suggestions include:

1. Establishing a National Judicial Appointments Commission (NJAC): The NJAC, a

constitutional body comprising representatives from the judiciary, executive, and civil society, was
proposed as an alternative to the Collegium System. However, the NJAC Act was struck down by
the Supreme Court in 2015 on the grounds that it violated the independence of the judiciary.
Despite this setback, many experts continue to advocate for a revised version of the NJAC to bring
transparency and accountability to the appointment process.5

2. Developing clear criteria for appointments: It is essential to develop objective criteria for the
appointment of judges, including their qualifications, experience, and track record. This would
help minimize biases and ensure that the best candidates are selected.

3. Greater transparency: The appointment process should be made more transparent by publishing
the shortlisted candidates' names and the reasons for their selection or rejection. This would help
in promoting accountability and public trust in the judiciary.

4. Strengthening the role of the High Court Collegium: Empowering the High Court Collegium to
recommend appointments and transfers for their respective High Courts could help decentralize
the process and improve efficiency. This would also help address concerns of regional
representation and diversity in the judiciary.6

5
Recasting the Judicial Appointments Debate - clpr.org.in. https://clpr.org.in/wp-content/uploads/2014/02/Judicial-
Appointments-Debate.pdf
6
Rethinking judicial appointments: Collegium vs. Commission. https://prsindia.org/theprsblog/rethinking-judicial-
appointments-collegium-vs-commission

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5. Involving the Bar and the Judicial Academy: The Bar Council of India and the National Judicial
Academy should play a more active role in the appointment process by recommending suitable
candidates and providing inputs on their professional competence and integrity.

6. Setting up a permanent secretariat: Establishing a permanent secretariat for the Collegium

System would help streamline the appointment process and ensure better coordination between the
various stakeholders.

7. Time-bound appointments: To address the issue of vacancies and backlog, it is crucial to set a
definite timeline for the appointment process. This would help ensure that vacancies are filled
promptly and the justice delivery system remains efficient.

CONCLUSION

The appointment of judges to the High Courts in India is a critical component of the judicial
system, as it directly impacts the functioning and effectiveness of the judiciary. The current
appointment process, driven by the Collegium System, has come under scrutiny for its lack of
transparency, accountability, and efficiency. To address these concerns, it is necessary to consider
implementing reforms, such as establishing a National Judicial Appointments Commission,
developing clear criteria for appointments, increasing transparency, and involving the Bar and the
Judicial Academy in the process.

While these recommendations may not be a panacea for all the issues plaguing the appointment
process, they can lay the foundation for a more transparent, accountable, and efficient system that
upholds the sanctity of the judiciary and the rule of law in India. Ultimately, the goal should be to
ensure that the appointment process is guided by the principles of merit, competence, and integrity,
so that the Indian judiciary continues to serve as a bulwark of democracy and justice for all citizens.

ACKNOWLEDGEMENT

I would like to express my deepest gratitude to our advisor and mentor, Jacob Sir, my
Constitutional Law faculty, The National University of Advanced Legal Studies, whose guidance
and encouragement I can never forget Jacob Sir has been a constant support and inspiration

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throughout the research process and an actual role model. It would not have been possible without
Sir, whose guidance has enriched the subject knowledge and understanding of the topic. I would
like to thank him from the bottom of my heart for the outstanding experience he arranged for the
research paper and for helping us grow academically.

I would like to thank The University for giving us the opportunity to expertise in the topic and
develop knowledge to compete in the area. Further, I would like to thank my parents, whose
constant love and support kept me motivated throughout the research process and for trusting me.
Last but not least, I would like to thank my friends and classmates for being there for me in every
minute detail throughout the process and guiding us through the hindrances and each of you who
had me in their prayers, without them, this would not have been possible.

I would forever be grateful to each one of you for giving us unconditional love and support in the
process of drafting this research paper.

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