Supreme Court Directs Himachal Pradesh HC Collegium to Reconsider Judicial Elevation

• The Supreme Court has directed the Himachal Pradesh High Court collegium to reconsider the names of two judicial officers, Chirag Bhanu Singh and Arvind Malhotra, for elevation to the Bench, after the officers moved the SC challenging the HC’s decision to recommend two other candidates.

• Article 217 of Indian Constitution covers the appointment and conditions of a High Court Judge.
• It says that 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.
• In the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court shall also be consulted.
• The Chief Justice of the High Court is appointed as per the policy of having Chief Justices from outside.

Eligibility 

• A person shall not be qualified for appointment as a Judge of a High Court unless he is a citizen of India and—
• has for at least ten years held a judicial office in the territory of India; or
• has for at least ten years been an advocate of a High Court in any State specified in the First Schedule or of two or more such Courts in succession.
• A High Court judge holds office until they are 62 years old.

Procedure

• A Collegium comprising the CJI and two senior-most judges recommends the names for the appointment for Judges of HCs.
• The CJI is required to consult with two senior-most judges of the Supreme Court.
• However, this process is initiated by the Chief Justice of the High Court concerned.
• The Chief Justice of the High Court is also required to consult his two senior-most puisne Judges before recommending a name for appointment to the High Court.
• The recommendation is sent to the Chief Minister, who advises the Governor to send the proposal to the Union Law Minister.

Controversy over the Word Consultation

• The constitutional provision gave the CJI and other judges the status of consultant and left the decision of appointment to the executives.
• This has been interpreted by the SC in a different way ultimately leading to the evolution of Collegium system.

Evolution of Collegium System

First Judges Case (1982)

• SC held that consultation does not mean concurrence
• Gave Primacy to Executive

Second Judges Case (1993)

• Court reversed its earlier ruling by changing the meaning of consultation to concurrence.
• Advice tendered by CJI is binding.
• CJI would take into account the views of two of his senior most colleagues.

Third Judges Case (1998)

• Court gave primacy to the opinion of CJI in the matter of appointment of Judges.
• However, Chief Justice must consult four seniormost judges of SC.
• Opinion of all members of the collegium should be in writing.