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Report No. 80

Appointment of High Court Judges

(2) In case of normal vacancies in the High Court, the initiative (for filling up the vacancy) should be taken by the Chief Justice at beast 6 months before the expected date of the vacancy,1 in order to obviate the possibility of the vacancy remaining unfilled for a long time after the retirement of the previous incumbent.2

1. Recommendation in 79th Report, para. 3.10, referred to.

2. Paras. 6.3 and 6.4.

(3) When making a recommendation for appointment of a judge of a High Court, the Chief Justice should consult his two seniormost colleagues. The Chief Justice, in his letter recommending the appointment, should state the fact of such consultation and indicate the views of his two colleagues so consulted.1

1. Paras. 6.5.

(4) Any recommendation of the Chief Justice which carries the concurrence of his two seniormost colleagues should normally be accepted.1

1. Para. 6.5.

(5) In a judge, maturity is as much essential as are other proficiencies. Maturity normally comes with years, brilliance and quick up-take being no substitute for it. In view of this, the minimum age at which a person should be appointed a judge of the High Court should be 45. For persons selected from the bar, there should be an upper age limit of 54.1

Though there have seen distinguished judges in the past who were appointed at a younger age, they constituted exceptional cases. The age limit indicated above should be ordinarily adhered to; a departure can, however, be made in exceptional cases and for reasons to be stated by the authorities concerned.2

1. Para. 6.6.

2. Para. 6.7.

(6) Other points to be kept in view for selecting persons as High Court judges are their competence, reputation for integrity and hard work, attitude of sobriety, balanced approach and dignity. Income-tax returns for the last 3 years (in case of members of the bar) would also be relevant.1

1. Para. 6.8.

(7) The Commission is, in principle, against selection to the High Court Bench on ground of religion, caste or region. Merit should be the only consideration. Even when matters of State policy make it necessary to give representation to persons belonging to some religion, caste or region, every effort should be made to select the best person. The number of such appointments should be as few as possible.1

1. Para. 6.9.

(8) While sending the name to the Chief Minister, the Chief Justice should also state the views of his two seniormost colleagues,1 as already stated.

1. Para. 6.10.

(9) There should be an outside limit of 6 months (as already recommended in the 79th Report, paragraph 3.11) within which the recommendation of the Chief Justice should be processed and completed in the State Government. The recommendation of the Chief Justice should engage the prompt attention of the Chief Minister, and should not be kept pending for more than a month. If exchanges of correspondence becomes necessary, efforts should be made to see that because of such exchange, the matter does not become stuck up.1-2

1. Para. 6.11.

2. Recommendation in 79th Report, para. 3.11 re-iterated.

(10) No rigid rule need be laid down as to whether personal meetings between the Chief Justice and the Chief Minister to discuss appointments to the High Court should be avoided. The difficulties that sometimes arise can be sorted out more quickly by a personal meeting than by correspondence. It would essentially depend upon the personal equation between the Chief Justice and the Chief Minister. Every such meeting would not result in some kind of bargaining, as is sometimes assumed.1

1. Para. 6.11.

(11) At the same time, as already indicated, a recommendation made by the Chief Justice with which both his seniormost colleagues agree should normally be accepted.1

1. Para. 6.13 read with para. 6.5.

(12) On the question whether the role of the Chief Minister should be that only of commenting on the name recommended by the Chief Justice, or whether the Chief Minister can also suggest another name, a decision has already been taken and nothing further need be said in the matter.1

1. Para. 6.14.

(13) The suggestion that the Chief Justice, while making the recommendation, should suggest a panel of names is not accepted, as it would have the effect of diluting the recommendation of the Chief Justice.1

1. Para. 6.15.

(14) Whatever has been said above about the avoidance of delay at the level of the Chief Minister should also hold equally good at the subsequent stages.1

1. Paras. 6.16 and 6.17.

(15) In regard to the appointment of the Chief Justice, normally the senior-most judge of the High Court should be appointed. Recommending a junior judge for appointment as Chief Justice would lead to the undesirable practice of junior judges cultivating a personal relationship with the Chief Minister and would undermine the independence of the judiciary and affect the image of the court. The role of the Chief Minister should be confined to taking the initiative for appointment of the Chief Justice and expressing views about the suitability of the seniormost judge for appointment as Chief Justice.1

1. Para. 6.18.

(16) If the seniormost judge is not considered suitable for the office of Chief Justice, a junior judge should not be appointed, but the proper course would be to appoint some judge from outside. The judge so appointed should have been on the bench of the court for a long time and should have that much seniority (as a judge) as not to cause embarrassment to the other judges. Care should also be taken to see that the appointment of outside judge as Chief Justice does not block the chances not only of the seniormost judge, but also of the other judges of the High Court. Of course, arithmetical exactitude in these matters cannot be insisted upon.1

1. Para. 6.19.

(17) It is desirable to ensure that no incumbent of the office of Chief Justice of the High Court normally holds that office more than six years.1 While long tenures may give an element of continuity to the court, yet in a majority of cases it has the effect of introducing certain weaknesses and undesirable traits.

1. Para. 6.20.

(18) There should be a convention according to which one-third of judges in each High Court should be from another State. This would normally be done through initial appointment, and not by transfer. The process will have to be gradual; it would take some years before the proportion is reached.1

Such a convention would not only foster national integration, but would also improve the functioning of High Courts. It would inspire a feeling that a dispassionate approach underlies their decisions. The advantages gained by having persons from other States as judges would be much greater compared with the possible disadvantages.2

1. Para. 6.21.

2. Para. 6.22.

(19) Though a number of persons would be reluctant to be appointed outside their State, a certain percentage of persons would have no objection to such an appointment. In case of District Judges, the prospect of promotion would be enough inducement. In case of members of the bar, they can practise in the State High Court wherein they were practising earlier.1

1. Para. 6.23.

(20) Since the suggestion for All-India Judicial Service, made earlier1, has been turned down, it is all the more imperative to find out some other modality to ensure the appointment of one-third of judges from outside the State. The outside, States should normally be in the same zone2 in which the State in which a person is to be appointed is situated.3

1. 77th Report

2. Section 15, State Reorganisation Act, 1956.

3. Para. 6.25.

(21) For this purpose, the Chief Justices may meet when necessary, or settle the name of the person to be appointed by correspondence.1

1. Para. 6.25.

(22) Care should, however, be taken to see that reciprocity in numbers (in matters of appointment of judges from other States) is maintained as far as possible.1

1. Para. 6.25.

(23) There is nothing rigid about the above modality. Once the principle is accepted, there should be no difficulty in devising a method for bringing out the desired result.1

1. Para. 6.26.

(24) The proposal for constituting a consultative panel-which had been described in the Questionnaire issued by the Law Commission as a "Judges Appointments Commission"-has not been favoured by most of the High Courts in their replies to the Questionnaire issued by the Commission and is accordingly dropped. It may, however, be stated1 that the idea was not to have a body like the Public Service Commission, but to associate a high level panel consisting of persons known for their integrity, independence and judicial background in the matter of appointments, to eliminate extraneous considerations and to ensure dispassionate scrutiny.2

1. Para. 6.27.

2. Paras. 6.27 and 6.28.

(25) At the same time, the Law Commission recommends that whenever it is proposed to pass over the seniormost judge for appointment to the office of Chief Justice of the High Court, the matter should be placed before a panel consisting of the Chief Justice of India and his four seniormost colleagues. The claim of the seniormost judge should not be ignored unless the aforesaid panel finds sufficient cause for such a course. In case of difference of opinion amongst the panel, the view of the majority may be taken as the view of the panel. Such a procedure will avoid discontent and controversy, and preserve the image of the High Court.1

1. Para. 6.29.

(26) Normally a judge should continue in the High Court where he is appointed, except where appointed Chief Justice of another High Court. But there are occasions-though rare-when the image and good name of the judiciary make it incumbent that a judge should be transferred, though the extreme remedy of impeachment may not be called for.

(27) To prevent abuse of the power of transfer, it is recommended that no judge should be transferred without his consent from one High Court to another unless a panel consisting of the Chief Justice of India and his four seniormost colleagues finds sufficient cause for such a course. In case of difference between members of the panel, the view of the majority be taken to be the view of the panel.1

1. Para. 6.30.

(28) Constitutional amendment may be required to implement the above recommendation for consultation with a panel consisting of Chief Justice of India and his four seniormost colleagues (in the matter of supersession or transfer of a High Court judge).1

Normally, the Law Commission is averse to recommending a constitutional amendment. But such a panel is necessary to ensure that controversy does not arise in regard to such action (as is indicated above) in respect of high judicial office.2

1. Para. 6.31.

2. Para. 6.32.

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