Report No. 230

Selection and appointment of High Court Judges

1.2 The post of the Judge of a High Court has importance under our Constitution and the incumbent is supposed to be not only fair, impartial and independent, but also intelligent and diligent. The general eligibility criterion is that a person should have put in ten years of practice/service in the legal/judicial field.

1.3 As a matter of practice, a person, who has worked as a District Judge or has practised in the High Court in a State, is appointed as a Judge of the High Court in the same State. Often we hear complaints about 'Uncle Judges'. If a person has practised in a High Court, say, for 20-25 years and is appointed a Judge in the same High Court, overnight change is not possible. He has his colleague advocates - both senior and junior - as well as his kith and kin, who had been practising with him. Even wards of some District Judges, elevated to a High Court, are in practice in the same High Court.

There are occasions, when advocate judges either settle their scores with the advocates, who have practised with them, or have soft corner for them. In any case, this affects their impartiality and justice is the loser. The equity demands that the justice shall not only be done but should also appear to have been done. In government services, particularly, Class II and upward, officers are not 9given posting in their home districts except for very special reasons. In any case, the judges, whose kith and kin are practising in a High Court, should not be posted in the same High Court. This will eliminate "Uncle Judges".

1.4 Sometimes it appears that this high office is patronized. A person, whose near relation or well-wisher is or had been a judge in the higher courts or is a senior advocate or is a political high-up, stands a better chance of elevation. It is not necessary that such a person must be competent because sometimes even less competent persons are inducted. There is no dearth of such examples. Such persons should not be appointed and at least in the same High Court. If they are posted in other High Courts, it will test their calibre and eminence in the legal field.

1.5 The post of Chief Justice should not be transferable. This practice was introduced in our country after the 'Emergency' had been imposed. If we look back, we find that the High Courts earlier had better reputation than what they have at present. The Chief Justice, who comes on transfer for a short period of six months, one or two years, is a new man, rather alien for the place and passes his time anyhow. He has to depend on others for policy decisions in administrative matters.

If the Chief Justice is from the same High Court, he will be in a better position to not only control the lower judiciary but also to assess the persons both from the bench and the bar for elevation to the High Court. This will also curtail the unnecessary delay in filling up the vacancies in the High Courts.

If the functioning of the High Courts is to be improved, the policy of transferring the Chief Justices should be given up forthwith. 10When the policy of transfer of Chief Justices was finally upheld by the Hon'ble Supreme Court, an eminent jurist of the country commented that the judiciary had committed suicide. Now the time has come when this policy needs re-evaluation.