Report No. 80
5.9. Impression about appointment otherwise than on merit-14th Report.-
The impression, nevertheless, has prevailed that the appointment of the Judges to the High Court has not been always made on merit and that this has affected the image of the High Courts. This impression was strengthened by the fourteenth Report of the Law Commission under the Chairmanship1 of Shri M.C. Setalvad sent on September 26, 1958. The Commission, while noting that most of the appointments had been made with the concurrence of all concerned, including the Chief Justice of the High Court and the Chief Justice of India, observed that with the prevailing procedure the Chief Justices of the High Courts gave their concurrence to prevent awkward situations arising from the appointment of persons not recommended by them or from the rejection by the executive of the persons recommended by them.
In the view of the Commission, many unsatisfactory appointments were made to the High Courts on political, regional, communal or other grounds with the result that the fittest men were not appointed. This resulted, the Commission found, in diminution in the out-turn of the work of the Judges. The Commission all the same expressed the view that the practice of consultation with the State executive should be adhered to and was necessary before appointments were made to the High Court. The Commission made in this connection the following recommendations2:
"(11) While it should be open to the State executive to express its own opinion on a name proposed by the Chief Justice, it should not be open to it to propose a nominee of its own and forward it to the Centre.
(12) The role of the State executive should be confined to making its remarks about the nominee proposed by the Chief Justice and if necessary asking the Chief Justice to make a fresh recommendation.
(13) It would be advisable for the Chief Justice of a State to send a copy of his recommendation direct to the Chief Justice of India to avoid delays.
(14) Article 217 of the Constitution should be amended to provide that a Judge of a High Court should be appointed only on the recommendation of the Chief Justice of that State and with the concurrence of the Chief Justice of India."
1. For summary, see 14th Report, Vol. 1.
2. 14th Report, Vol. 1.
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