Report No. 80
Apart from the above the following suggestions are made:
(i) In case of the appointment of a Judge of the High Court, the Chief Justice of the High Court, before making recommendation, should consult his two senior-most colleagues. In the communication containing the recommendation, the Chief Justice should state that he has consulted the two seniormost colleagues and what has been the view of each of them in respect of the recommendation. Normally, a recommendation in which the two seniormost colleagues concur with the Chief Justice, should be accepted.
(ii) Similar course should be adopted in case of the appointment of a Judge of the Supreme Court.
(iii) In the matter of the appointment of the Chief Justice of the High Court, no Junior Judge should normally be appointed in supersession of the seniormost Judge.
(iv) If the seniormost Judge is considered not suitable for appointment as Chief Justice, in that event, a Chief Justice or a Judge from another High Court should normally be appointed as Chief Justice.
(v) Apart from that also, we should more frequently appoint a Judge from outside as Chief Justice of the High Court. The disadvantage of this proposal is that an outside Chief Justice would not have full knowledge about the local talent. The advantage, however, would be that he would not suffer from any personal likes or dislikes from which a local person having long association with others, might suffer. It should not also take the outsider long to acquire knowledge of the local talent. An outsider is also likely to bring greater detachment and dispassionate approach to the office of the Chief Justice. The advantages may thus outweigh the disadvantages.
(vi) We should also have a convention according to which one-third of the Judges in each High Court should be from another State. This would normally have to be done through process of initial appointments and not by transfer. It would, in the very nature of things, be a slow and gradual process and take some years before we reach the proportion.
Once the principle of having a certain percentage of persons from outside the State as Judges of the High Court is accepted, the modalities to bring about the desired result can be worked out. One suggestion can possibly be that every Chief Justice, while proposing the name of a person for appointment as High Court Judge should mention in the communication as to whether that person agrees to be appointed outside the State. In the case of District Judges proposed to be appointed, the prospect of promotion would, in most cases, be enough inducement and thus outweigh the possible inconvenience of being posted outside the State. As regards lawyers, some might consider it advantageous to be appointed outside the State so that after retirement they can resume, if they so desire, the practice in the State wherein they were practising earlier.
(vii) In the matter of appointment of Chief Justice of the Supreme Court, the normal convention should be to appoint the seniormost Judge. There should be no departure from convention unless such a course is approved by the Commission.