How Are Judges Appointed in India’s Higher Courts? A Deep Dive into the Process

The High Courts and The Supreme Court of India are designated as the Higher court of India where judicial appointments are made through multi-stage process and through structured protocol designed to ensure the independent working of the judicial system. Let’s take a deep dive into how judges are appointed.

There is various Constitutional Framework or protocol that refers to the set of principles, procedures and provisions laid down by the constitution of India for structuring and restructuring of the powers and responsibilities of the Indian machinery like legislative and Judiciary. Here are mentioned the list of constitutional framework for the appointment of Judges at Supreme Court and at Various High Courts of the country.

1. Constitutional Framework

The appointment of judges is governed by:

• Article 124 – Supreme Court Judges

• Deals with the appointment of Supreme Court judges.
• The President appoints judges after consultation with judges of the SC and HC as deemed necessary.
• Specifies qualifications for SC judges.

• Article 217 – High Court Judges
• The President appoints High Court judges.
• Requires consultation with the Chief Justice of India, the Governor of the state, and the Chief Justice of the High Court.
• Specifies qualifications for HC judges.
• Article 222 – Transfer of Judges

The President, after consulting the Chief Justice of India, can transfer a judge from one High Court to another.

• Article 224 – Additional and Acting Judges

Allows appointment of temporary judges to handle increased workload.

These articles establish the President of India as the appointing authority, but the real power lies with the Collegium System developed through judicial interpretation.

These help interpret and implement the articles mentioned:

• Judicial Independence: A basic feature of the Constitution; ensures that the judiciary remains free from political or executive pressure.
• Checks and Balances: Though the President appoints judges, the judiciary (via the Collegium) has a major say, balancing executive power.
• Rule of Law: Upholds that every action, including judicial appointments, must follow legal procedures and constitutional mandates.

2. The Collegium System

What is it?

The Collegium System is a judicial innovation developed through three landmark judgments known as the Three Judges Cases. It governs the appointment and transfer of judges.

• Supreme Court Collegium: Consists of the Chief Justice of India (CJI) + 4 senior-most Supreme Court judges.
• High Court Collegium: Consists of the Chief Justice of the High Court + 2 senior-most judges of that court.

3. Appointment to the Supreme Court

Who Can Be Appointed?

As per Article 124(3), a person is qualified if:

• They are a High Court judge for at least 5 years, or
• An advocate in a High Court for at least 10 years, or
• A distinguished jurist (rarely used)

Appointment Process:

1. Collegium Recommendation: The SC Collegium recommends names based on merit and seniority.
2. Law Ministry Review: For background checks and documentation.
3. Prime Minister forwards it to the President.
4. President Appoints the judge (has limited discretion).

4. Appointment to High Courts

Who Can Be Appointed?

As per Article 217(2), a person is qualified if:

• They are an advocate of a High Court for 10 years, or
• A judicial officer in the Indian judicial service for 10 years

Appointment Process:

1. Initiation by the High Court Collegium (Chief Justice + 2 seniors)
2. State Government inputs (Governor, CM) are sought.
3. Supreme Court Collegium reviews and approves.
4. Law Ministry clears the proposal.
5. President appoints the judge.

5. Transfers of Judges

• Done under Article 222.
• Initiated by the CJI and approved by the President.
• Aimed at maintaining the impartiality of judges and preventing local influence.

6. Memorandum of Procedure (MoP)

• A detailed procedural document, not codified in law, but followed in practice.
• MoP guides the appointment process and is often revised based on SC guidelines.

7. Judicial Review & Transparency

• The Collegium system has been criticized for lack of transparency and accountability.
• In 2015, the National Judicial Appointments Commission (NJAC) Act was struck down by the SC for compromising judicial independence.

Future Insight of the Judicial System

The moment has come to consider a permanent, independent organization that will institutionalize the process while providing sufficient protections to maintain the independence of the judiciary, ensuring judicial primacy but not judicial exclusivity.

It should guarantee autonomy; represent diversity, and exhibit honesty and professional skill.
Rather of choosing the necessary number of judges based on a predetermined number of openings, the collegiums must submit a list of potential candidates for the President to choose from based on preference and other legitimate factors.

Judges of the Supreme Court and High Courts are appointed by the President, but on the recommendation of the judiciary itself through the Collegium System, to preserve judicial independence. It is important for the essence of judicial appointments in India — ensuring that the executive authority (President) acts on the advice of the judiciary, maintaining the separation of powers and autonomy of the judicial system.

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