Report No. 80

Question No. 20

(a) One High Court has suggested that the recommendation of the Chief Justice of the High Court for the appointment of a Judge should be sent directly to the Chief Justice of India and not through the Chief Minister or the Governor. The initiation of a proposal for appointment of the Chief Justice of the High Court should be from the Chief Justice of India, and not from the State Government.

Another High Court is of the view that there should be a time-bound procedure for the appointment of High Court Judges, particularly in regard to the stage of the Chief Minister sending comments on the names recommended by the Chief Justice for appointment as High Court Judge. The time limit should be one month, and if no comments are received within the period of one month, it should be assumed that the names recommended by the Chief Justice have the approval of the State Government.

Another High Court has suggested that the appointment (to the High Court) must be made within 6 months of getting the consent of a member of the bar. If the authorities to not give their opinion within a stated period, they should be deemed to have agreed with the Chief Justice. It is also suggested that the Members of the Bar should be entitled to full pension after 7 years of service as Judge. That High Court is opposed to a fixed quota for appointment from services, and suggests that merit alone should be considered, irrespective of seniority.

(b) The Chief Justice of a High Court is of the view that the Chief Justice of the High Court should send his recommendation to the Chief Justice of India. In his opinion, consultation with the Chief Minister and the Law Minister is an extra-constitutional practice. Some Judges of another High Court have also stated that the State Government should have no say in the matter of appointment of Judges and that the provision regarding consultation with the Governor should be deleted. But the Chief Justice of the same High Court is not in favour of deleting the provision regarding consultation with the Governor.

According to some Judges of a High Court, there should be no transfer of a High Court Judge without his consent. They are also of the view that no person should be appointed as a Judge of the High Court unless recommended either by the Chief Justice of the High Court or by the Chief Justice of India and that no person should be appointed as a Judge of the Supreme Court unless recommended by the Chief Justice of India. A Judge of another High Court has expressed the.view that the appointment of High Court Judges should be made on the recommendation of the Chief Justice of the High Court, who should have a preponderating voice.

(c) A very eminent jurist who has sent a reply to the Questionnaire has no further suggestions to make.

(d) As regards the State Governments, one of them is of the view that there should be one-third of the Judges of the High Court from the subordinate judiciary to attract better talent while another State Government suggests that at least 60 per cent. of the Judges should be appointed by promotion of District Judges as a fillip to the lower judiciary which decides the fate of the common man. One Law Secretary would like half of the vacancies in the High Courts to be filled from amongst District and Sessions Judges. Consultation with the Chief Justice of India and his two seniormost colleagues for the appointment of Judges in the Supreme Court has been suggested by a State Government.

A State Government has suggested that 6 months before a Judge is to retire, the process for selection should be initiated. Another State Government would like the names of the candidates considered for appointment to be duly published 6 weeks in advance, so that if any candidate has unsatisfactory or unsavoury past, it may be brought to the notice of the members of the public. It says that the Government would make secret inquiries about the truth or falsity of the allegation against any aspirant before a final decision is taken.

One Law Secretary suggests that at least 10 members should be considered for the post of High Court Judge and selection should be on seniority-cum-merit basis. The proposal from the Chief Justice of the High Court after consultation with two seniormost colleagues and agreed in by the State Government should, he says, be accepted. He has emphasised that in the confirmation, extension and transfer of High Court Judges, the Chief Justice of India should have a decisive voice.