High Court nominations for judicial positions are beyond the command of the Supreme Court Collegium, according to Chief Justice of India BR Gavai.
The appointment of judges in India's High Court and Supreme Court follows distinct procedures, each with its unique steps and controversies.
Appointment Process: A Comparative Analysis
The appointment of High Court judges is a collaborative process, involving recommendations from the High Court Collegium, consultation with the state government, and the Union government, and ultimately approval by the Supreme Court Collegium and the President of India. In contrast, the appointment of Supreme Court judges is initiated by the Chief Justice of India (CJI) in consultation with a collegium of the four senior-most Supreme Court judges. The process concludes with the approval of the central government and the President.
| Aspect | High Court Judges | Supreme Court Judges | |--------------------------------|----------------------------------------------------------|----------------------------------------------------------| | Initiation of Proposal | Chief Justice of the concerned High Court, in consultation with two senior-most High Court judges[5]. | Chief Justice of India initiates, in consultation with four senior-most Supreme Court judges[4][5]. | | Collegium Involvement | Recommendations made by High Court Collegium, then reviewed by Supreme Court Collegium[1][5]. | Recommendations made directly by Supreme Court Collegium headed by the CJI[4][5]. | | Role of State Government | Views of the concerned state government are obtained and considered[1][5]. | Not involved in Supreme Court appointments. | | Role of Union Government | Considers recommendations along with other available reports before forwarding to SCC[1][5]. | Receives final recommendations from CJI and collegium for approval[4]. | | Final Appointment | President appoints judges on recommendation by the Supreme Court Collegium[1][3][5]. | President appoints judges based on CJI-led collegium recommendations[4]. |
Concerns Raised and Discussions
The appointment system has been a subject of debate, with concerns raised about transparency, delays, and the concentration of power within the judiciary.
- Lack of Transparency: The collegium system, which dominates both High Court and Supreme Court appointments, has been criticized for its opaque functioning and lack of explicit criteria or clear procedure in selecting judges[2][4].
- Delay in Recommendations: High Courts are required to make recommendations at least six months before a vacancy arises, but this is rarely observed, causing delays in filling vacancies[1][5].
- Exclusion of Executive Role: Critics argue that the executive (government) has a limited role, particularly in Supreme Court appointments, which some view as undermining democratic accountability[2].
- Collegium’s Dominance: The evolving judicial interpretation has given primacy to the collegium, especially the Supreme Court Collegium, which has led to concerns over concentration of appointment powers within a small judicial group without sufficient checks[2][5].
- Consultation with State Government: While state governments are consulted for High Court appointments, the effectiveness and autonomy of this consultation process is questioned, given the ultimate decision lies with the Supreme Court Collegium[1].
Recently, concerns were flagged by SCBA President Vikas Singh, to which Chief Justice of India (CJI) BR Gavai responded. CJI Gavai stated that the Supreme Court Collegium cannot dictate the High Court Collegium to recommend names. He also suggested creating a database of eligible candidates for transparency in the appointment of judges, including Supreme Court lawyers' names.
CJI Gavai has had some success in recommending Supreme Court lawyers for appointments as High Court judges. However, Vikas Singh expressed concern that only lawyers who argue before High Courts are often recommended for High Court judgeship. The first call on which names are recommended for High Court judgeship is taken by the High Court Collegium.
It is essential to note that both the Supreme Court and High Courts are constitutional courts, and their appointments play a crucial role in upholding the rule of law and maintaining the balance of power in India's democratic system. The ongoing discussions aim to address the concerns and strive for a more transparent and efficient appointment process.
The ongoing discussions surrounding the appointment process of judges in India focus on enhancing transparency and efficiency, taking place within the context of policy-and-legislation and general-news. The concerns raised include the lack of transparency in the collegium system, delays in recommendations, exclusion of the executive role, concentration of power within the judiciary, and the consultative process with state governments. In light of these issues, suggestions have been made to create a database of eligible candidates for increased transparency and to recommend Supreme Court lawyers for appointments as High Court judges. These discussions highlight the importance of the appointment process in upholding the rule of law and maintaining the balance of power in India's democratic system.
