Article 217(1) of the Indian Constitution: Appointment and Conditions of Office of a Judge of a High Court | Kanoon.site
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Article 217(1) of the Indian Constitution: Appointment and Conditions of Office of a Judge of a High Court

Part: VI
Shorthand Notes: High Court Judge Appointment Process

Article 217 of the Indian Constitution lays down the procedure for the appointment of Judges to the High Courts and specifies their conditions of office. Clause (1) of this Article is particularly crucial as it outlines the method by which a Judge of a High Court is appointed by the President of India. This process involves mandatory consultation with key constitutional functionaries, reflecting a blend of executive and judicial roles in maintaining the independence of the judiciary.

The procedure stipulated in Article 217(1) is a cornerstone for ensuring that qualified individuals are appointed to the High Courts, which play a vital role in the country’s judicial system. Understanding this provision is essential for comprehending the constitutional framework governing the higher judiciary in India.

Original Text

(1) Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court, and shall hold office, in the case of an additional or acting Judge, as provided in article 224, and in any other case, until he attains the age of sixty-two years:

Provided that— (a) a Judge may, by writing under his hand addressed to the President, resign his office; (b) a Judge may be removed from his office by the President in the manner provided in clause (4) of article 124 for the removal of a Judge of the Supreme Court; (c) the office of a Judge shall be vacated by his being appointed to be, or by his being transferred by the President to be, a Judge of any other High Court or the Supreme Court.

Detailed Explanation

Article 217(1) prescribes the method for the appointment of a Judge to a High Court in India. The ultimate appointing authority is the President of India. This appointment is made formally by a warrant under the President’s hand and seal, signifying its constitutional importance.

Crucially, the President cannot make this appointment unilaterally. The process mandates a consultation phase involving specific authorities:

  1. The Chief Justice of India (CJI): Consultation with the head of the Indian judiciary is compulsory for all appointments of High Court Judges, including the Chief Justice of a High Court.
  2. The Governor of the State: The head of the executive in the concerned state is also a mandatory consultee. This ensures input from the state government regarding the proposed appointment.
  3. The Chief Justice of the High Court: This consultation is required only for the appointment of a Judge other than the Chief Justice of that High Court. When appointing the Chief Justice of a High Court, consultation is only required with the CJI and the State Governor.

The term “consultation” in this context has been subject to significant judicial interpretation over the years, particularly in the series of “Judges Cases” decided by the Supreme Court. Initially, consultation was viewed merely as seeking advice, but later interpretations, especially following the Second and Third Judges Cases, have emphasized the primacy of the opinion of the Chief Justice of India and the Collegium (a body of senior Supreme Court judges led by the CJI) in the appointment process. This evolution has effectively shifted the balance of power in judicial appointments more towards the judiciary.

Article 217(1) also specifies the tenure of a High Court Judge. A permanent Judge holds office until they attain the age of sixty-two years. The proviso to clause (1) outlines how a Judge’s office may cease: by resignation addressed to the President, by removal through the process laid down for Supreme Court Judges (impeachment-like process), or by being appointed or transferred to another High Court or the Supreme Court.

Detailed Notes

  • Article 217(1) deals with the appointment and tenure of Judges of a High Court.
  • Appointing Authority: The President of India.
  • Appointment is by warrant under the President’s hand and seal.
  • Appointment requires mandatory consultation with specific authorities.
  • Authorities to be consulted for any High Court Judge appointment:
    • The Chief Justice of India (CJI).
    • The Governor of the State concerned.
  • Additional authority to be consulted for the appointment of a Judge other than the Chief Justice of the High Court:
    • The Chief Justice of the High Court concerned.
  • Consultation with the High Court Chief Justice is not required when appointing the Chief Justice of that High Court.
  • The meaning of “consultation” has evolved significantly through judicial pronouncements (Judges Cases), giving primacy to the opinion of the Chief Justice of India and the Collegium.
  • Tenure of a Judge: Holds office until attaining the age of sixty-two years, except for additional or acting judges whose tenure is governed by Article 224.
  • Ways a Judge’s office may cease (as per Proviso):
    • Resignation: By writing under their hand addressed to the President.
    • Removal: By the President in the manner provided in Article 124(4) for Supreme Court Judges (process involves Parliament).
    • Vacation of Office: Upon appointment or transfer by the President to another High Court or the Supreme Court.

Additional Comments

  • The practical application of Article 217(1) is heavily influenced by the Collegium System. The Supreme Court Collegium (CJI + two senior-most judges) and the High Court Collegium (High Court Chief Justice + two senior-most judges) play a significant role in initiating and recommending appointments, and their recommendations are generally binding on the executive.
  • The consultation process aims to ensure a balance between executive and judicial input, although the judicial interpretation has tilted the balance towards judicial primacy to safeguard the independence of the judiciary.
  • The process typically begins with the recommendation from the High Court Collegium, forwarded through the State Government and the Union Law Ministry to the Supreme Court Collegium for approval, before being sent to the President for the final warrant of appointment.
  • Article 217(2) specifies the qualifications required for a person to be appointed as a High Court Judge, such as being a citizen of India and having held judicial office or been an advocate for a certain period.
  • The age of retirement for High Court Judges was increased from sixty to sixty-two years by the Fifteenth Amendment Act, 1963.

Summary

A Judge of a High Court is appointed by the President of India through a warrant. This appointment follows a mandatory consultation process involving the Chief Justice of India and the Governor of the State. For appointments of Judges other than the Chief Justice, the Chief Justice of the concerned High Court is also consulted. Judges hold office until the age of sixty-two, subject to provisions for resignation, removal as per the procedure for Supreme Court Judges, or vacation of office upon transfer or elevation. The interpretation of the consultation process, particularly through the Collegium System, significantly shapes the practical implementation of this article, emphasizing judicial input in appointments to ensure the independence of the judiciary.
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