HIGH COURT JUDGE APPOINTMENT

TAG: GS-2: POLITY AND CONSTITUTION

CONTEXT: The Union government said 219 proposals for the appointment of High Court judges across the country are in various stages of processing.

EXPLANATION:

More in the news:

• Current Vacancy Status out of the total sanctioned strength of 1,114 High Court judges, 757 are currently working, leaving 357 vacancies. The Union government has 219 proposals for new High Court judges under various stages of processing. The Supreme Court Collegium (SCC) has processed 82 of the 90 proposals sent by the government, with 129 fresh proposals pending.

Appointment Process:

1. • The appointment of High Court judges involves a multi-step process requiring the advice of the Supreme Court Collegium (SCC).
   • The revised Memorandum of Procedure (MoP) for appointments, aimed at increasing transparency and accountability, has not yet been finalized. The government and the Collegium are at an impasse over this revised MoP.

Appointment of Judges in the High Courts:

• Article 217 of the Constitution:It states that the Judge of a High Court shall be appointed by the President in consultation with the Chief Justice of India (CJI), the Governor of the State. In the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court is consulted.

Consultation Process: High Court judges are recommended by a Collegium comprising the CJI and two senior-most judges.

• The proposal, however, is initiated by the Chief Justice of the High Court concerned in consultation with two senior-most colleagues.
• The recommendation is sent to the Chief Minister, who advises the Governor to send the proposal to the Union Law Minister.
• The Chief Justice of the High Court is appointed as per the policy of having Chief Justices from outside the respective States. The Collegium takes the call on the elevation.

Ad-hoc Judges: The appointment of retired judges was provided for in the Constitution under Article 224A. Under the Article, the Chief Justice of a High Court for any State may at any time, with the previous consent of the President, request any person who has held the office of judge of that court or of any other High Court to sit and act as a judge of the High Court for that State.

Collegium System:

• It is the system of appointment and transfer of judges that has evolved through judgments of the SC, and not by an Act of Parliamentor by a provision of the Constitution.
• First Judges Case (1981):It declared that the “primacy” of the Chief Justice of India (CJI) recommendation on judicial appointments and transfers can be refused for “cogent reasons.”
  The ruling gave the Executive primacy over the Judiciary in judicial appointments for the next 12 years.
• Second Judges Case (1993):SC introduced the Collegium system, holding that “consultation” really meant “concurrence”.
  It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the SC.
• Third Judges Case (1998):SC on the President’s reference expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues (for example for the transfer of HC judges).
• Fourth Judges Case (2014): The 99^th Amendment Constitutional Amendment Act, 2014 which established the National Judicial Appointment Commission (NJAC) and the NJAC Act, was passed by Parliament in 2014.
• It provides for a transparent and broad-based process of selectionof Judges of the Supreme Court and High Courts replacing the collegium system. This Act provides for the insertion of Articles 124A, 124B, and 124C to the Constitution of India, 1950 (COI).

Constitutionality of NJAC

• In 2015, the Supreme Court in the case of Supreme Court Advocates o-Record Association and Anr. v. Union of India declared both the 99^th Constitutional Amendment Act 2014 and the NJAC Act, 2014 as unconstitutional and null and void.
• It was contended that both the acts were unconstitutional and invalid.
• It argued that the 99^th Amendment Act which provided for the creation of the NJAC took away the primacy of the collective opinion of the Chief Justice of India and the two senior-most Judges of the Supreme Court of India” as their collective recommendation could be vetoed or suspended by majority of three non-Judge members.
• It stated that the Amendment severely damaged the basic structure of the Constitution of which the independence of the judiciary in appointing judges of the higher judiciary was an integral part.
• It also contended that the NJAC Act was itself void and ultra vires of the Constitution
• The verdict brought back the primacy of the collegium system of judges appointing judges.

Current Challenges:

• Judicial Appointments and Vacancies: The high number of vacancies can impact the efficiency and functioning of the judiciary. Timely appointments are crucial for maintaining the effectiveness of the judicial system.
• Process Delays: The delays in the appointment process and adherence to the six-month timeline by High Courts can contribute to the backlog of vacancies.
• Memorandum of Procedure (MoP): The ongoing issues with the MoP reflect broader challenges in judicial appointments. A revised MoP could potentially address some of the transparency and efficiency concerns, but the lack of consensus between the government and the Collegium remains a significant hurdle.
• Transfer of Judges: The proposal to transfer judges indicates efforts to address imbalances or administrative needs within the judiciary, though without a set timeline, it might not address the immediate vacancies.

Sources:

https://www.thehindu.com/news/national/219-proposals-for-high-court-judge-appointment-under-process-govt/article68448622.ece