The High Court is a state's highest judicial court. It is the country's second-highest court, behind the Supreme Court of India. The Indian constitution establishes a high court for each state; however, the Parliament has the authority to establish a joint high court for two or more states. A high court's territorial jurisdiction is coterminous with a state's territory. The President of India appoints a High Court Judge. He is entirely responsible for the appointment of any High Court judge. This article explains the Appointment of Judges of High Court - Collegium System which is important for UPSC Indian Polity Preparation.

Appointment of Judges of High Court

The Judges of a High Court are appointed by the President by a warrant under his hand and seal under Article 217.

Constitutional Provisions Regarding Appointment of Judges of High Court

Evolution of Collegium System for Appointment of Judges of High Court

It can be defined as the system of appointment and transfer of judges of Supreme Court and High Court. The collegium system evolved through judicial interpretation rather than being explicitly provided for in the Indian Constitution. The system gained prominence after a series of judicial pronouncements, particularly the Three Judges Cases.

National Judicial Appointments Commission Act of 2014

• Constitution of the Commission: It established the National Judicial Appointments Commission, consisting of the Chief Justice of India, two senior-most judges of the Supreme Court, the Union Minister of Law and Justice, and two eminent persons.
• Role in Appointments: The NJAC was tasked with the responsibility of recommending candidates for appointment as Chief Justice of India, judges of the Supreme Court, Chief Justices of High Courts, and other judges of High Courts.
• Process for selecting the two eminent persons: They were to be nominated by a committee consisting of the Prime Minister, the Chief Justice of India, and the Leader of the Opposition in the Lok Sabha or the leader of the largest opposition party.
• Functions and Powers: The Commission was empowered to recommend individuals for appointment as judges based on their merit and suitability. It was also responsible for recommending transfers of judges.

On 16 October 2015, the Constitution Bench of the Supreme Court by a 4:1 majority upheld the collegium system and struck down the NJAC as unconstitutional

Appointment of Chief Justice of High Courts

• Chief Justice of the High Court is appointed by the President after consultation with the Chief Justice of India and the governor of the state concerned.
• Chief Justice of India would send his/her recommendation for the appointment of a puisne Judge of the High Court as Chief Justice of that High Court or of another High Court, in consultation with the two senior- most Judges of the Supreme Court.
• A puisne judge is a judge who is ranked lower in seniority than the Chief Justice of a particular High Court

Appointment of Acting Chief Justice of a High Court

• The President under Article 223 of the Constitution can appoint a judge of a high court as an acting chief justice of a high court in the following situation
  • The office of chief justice of the high court is vacant
  • If the chief justice of the high court is temporarily absent
  • If the chief justice of the high court is unable to perform the duties of his office.

Appointment of Judges of a High Court

• Judges of the High Courts are to be appointed under clause (1) of Article 217 of the Constitution.
• Judges of the High Courts are to be appointed by the President by a warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and Chief Justice of the High Court.
• For appointing the judges of High Courts, judges of the concerned high court are also consulted.
• In the case of a common high court for two or more states, governors of all the states concerned are consulted by the President.

Appointment of Additional and Acting Judges to the High Court

• The President can appoint duly qualified persons as additional judges of the high court for temporary period not exceeding two years when:
  • There is a temporary increase in the business of a high court or
  • There are arrears of work in the high court.
• The President can appoint duly qualified persons as an acting judge of the high court when a judge of a high court is unable to perform duties of the office or appointed to act temporarily as chief justice of that high court.
• Both the additional and acting Judge of a high court cannot hold the office after attaining the age of 62 years.

Appointment of Retired Judges to the High Court

• The chief justice of a high court may, at any time can request a retired judge of that high court or any other high court to act as a judge of a high court for a limited term.
• He can only do so with the prior approval of both the President and the person to be appointed.
• Such a judge is entitled to the allowances determined by the President.
• He will also enjoy the same jurisdiction, powers, and privileges as a judge on that court. However, he will not be considered a judge of that high court.

Qualifications, Oath and Salaries of the Judges to the High Court

Qualifications of Judges

• Should be a Citizen of India.
• Should have held a judicial office in the territory of India for ten years or
• Should have been an advocate of a High Court for 10 years.
• No minimum age has been prescribed by the Constitution for appointment as a judge of the Supreme Court.
• Unlike the Supreme Court, Constitution has not made any provisions for the appointment of a distinguished Jurist as a judge of the high court.

Oath or Affirmation

• Oath to the judges of the Supreme Court is prescribed by the governor or some person appointed by him.

Salaries and Allowances

• The salaries, allowances, leave and pension of the judges of a high court are determined from time to time by the Parliament.
• They can not be varied to their disadvantage after their appointment except during a financial emergency.
• The retired Chief Justice and judges are entitled to 50% per cent of their last drawn salaries as monthly pension.

Issues in the Appointment Process of Judges of High Court (Collegium system in India)

The Collegium system in India has faced several criticisms and issues over the years

• Lack of Transparency: The process of appointment and transfer of judges is often seen as opaque, with decisions made behind closed doors without clearly defined criteria for the selections.
• Lack of Accountability: The Collegium system lacks accountability as there is no mechanism for oversight or review of its decisions. This absence of accountability has led to concerns about nepotism, favouritism, and other biases influencing judicial appointments.
• Against the principle of separation of powers: Judges appointing judges goes against the principle of separation of powers between executive and judiciary and the principle of check and balance.
• Judges appointing judges: It is against the principle of separation of powers which is the basic structure of the Constitution. If judges are directly involved in appointing their colleagues, it could raise questions about impartiality and fairness in the judicial system.
• Promotion of Mediocrity: According to set convention, only senior-most judges are appointed to the Supreme Court, overlooking several talented junior judges and advocates.
• Meagre representation of women: The collegium system does not ensure adequate representation of women in the judiciary. For example, In the Supreme Court, there are currently four women judges out of the sitting 33. Women’s representation in percentage terms 12.5% in SC,13% in HCs and 35% in subordinate courts.
• Allegations of nepotism and favouritism: Such allegations can erode public trust in the judiciary and undermine the credibility of judicial appointments.

Reforms in the Process of Judicial Appointments

• Formation of Search-cum-Evaluation Committee: It is proposed by the Ministry of Law and Justice, to bring transparency in judicial appointments through the collegium system. It will prepare a panel of eligible candidates for consideration by respective collegiums.
• Clear and objective eligibility criteria: Clear and objective eligibility criteria should be formulated to assess the performance and suitability of candidates. These criteria must be made public to ensure transparency.
• Public Input and Immunity: The SEC should invite public input regarding shortlisted candidates.
• Involvement of Executive and Legislature: The selection process for judges should involve all three branches of government Executive, Legislature, and Judiciary. The Law Commission suggested a law to restore the primacy of the Chief Justice of India (CJI) while ensuring executive participation in judicial appointments should be considered.
• Transparency in Collegium Decisions: Decisions made by the Supreme Court collegium should be disclosed to the public to reduce the culture of secrecy associated with judicial appointments. Eg. Complete records, including video or audio recordings, of collegium deliberations should be maintained. This would ensure transparency and provide insight into the decision-making process.

Conclusion

High Courts serve as the highest judicial authority at the state level play a pivotal role in upholding fundamental rights by adjudicating cases and issuing writs such as habeas corpus and mandamus. Additionally, High Courts interpret and uphold the Constitution, ensuring legislative conformity with constitutional principles. They exercise supervisory authority over the subordinate judiciary, maintaining integrity and accountability within the judicial system. Overall, High Courts serve as guardians of justice, equity, and the rule of law, crucial for India's democratic framework.

FAQs

MCQs

1. Who heads the Collegium System for appointing judges to the High Court?

A) President of India
B) Chief Justice of India
C) Prime Minister
D) Union Minister of Law and Justice

2. What is the minimum experience required as an advocate to be eligible for appointment as a High Court judge?

A) 5 years
B) 7 years
C) 10 years
D) 15 years

3. Which body makes the final recommendation for the appointment of High Court judges?

A) The Union Cabinet
B) The State Legislature
C) The Collegium
D) The Supreme Court

4. In which case was the Collegium System established by the Supreme Court of India?

A) Golaknath Case
B) Keshavananda Bharati Case
C) S. P. Gupta Case
D) Second Judges Case

5. Who has the final authority to confirm the appointment of a High Court judge?

A) Chief Justice of India
B) Prime Minister
C) President of India
D) Governor of the concerned state

GS Mains Questions and Model Answers

Q1: Analyze the significance of the Collegium System in ensuring the independence of the judiciary in India.

Answer: The Collegium System plays a critical role in ensuring the independence of the judiciary by limiting executive interference in the appointment and transfer of judges. Established through a series of landmark judgments, the system empowers the Chief Justice of India and senior judges of the Supreme Court to make decisions based on merit, integrity, and seniority. This prevents the concentration of power in the hands of the executive and safeguards the constitutional principle of the separation of powers. However, the system has faced criticism for its lack of transparency and accountability, leading to demands for reforms.

Q2: Discuss the role of the state government in the appointment of judges to the High Court.

Answer: While the Collegium System primarily handles the recommendation process for the appointment of High Court judges, the state government plays a consultative role. The Chief Justice of the concerned High Court consults with the state government before sending recommendations to the collegium. This ensures that local concerns and regional legal needs are considered. However, the final decision rests with the Collegium and the President of India, ensuring that the independence of the judiciary is maintained.

Q3: Evaluate the criticisms and challenges faced by the Collegium System in India.

Answer: The Collegium System has been a subject of criticism due to its opaque nature and lack of accountability. Critics argue that there is no formal system of transparency, and decisions regarding judicial appointments are often not explained or justified. This has led to concerns about favoritism and inefficiency in the appointment process. Additionally, the system lacks a clear mechanism for addressing grievances or disputes regarding appointments. Despite these challenges, the Collegium System has been defended for its role in ensuring judicial independence, which is a cornerstone of India's democracy.

Previous Year Questions on Collegium System

1. UPSC CSE Mains 2019 (GS Paper 2)

Question: Critically examine the effectiveness of the Collegium System in the appointment of judges in India.

Answer: The Collegium System has played a crucial role in ensuring the independence of the judiciary by minimizing executive influence in judicial appointments. However, its effectiveness has been questioned due to the lack of transparency and accountability. While the system ensures that appointments are made based on merit and seniority, its opaque nature has led to concerns about favoritism and lack of diversity in appointments. There is growing consensus on the need for reforms to introduce greater transparency and accountability while preserving judicial independence.

2. UPSC CSE Prelims 2018

Question: In which of the following cases was the Collegium System for judicial appointments established?

A) Golaknath Case
B) Keshavananda Bharati Case
C) Second Judges Case
D) S. R. Bommai Case

Answer: C

Explanation: The Collegium System for judicial appointments was established through the Second Judges Case (1993), where the Supreme Court ruled that the opinion of the Chief Justice of India would have primacy in judicial appointments.

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