Department of Justice is a part of Ministry of Law & Justice as per the Allocation of Business Rules of Government of India. It is one of the oldest Departments of Govt. of India and was under the administrative control of the Ministry of Home Affairs. The functions of the Department of Justice include the appointment, resignation and removal of the CJI, Judges of the Supreme Court of India, Chief Justices and Judges of the High Courts and their service matters.[i]
Abbreviations:
Art. – Article
CJI – Chief Justice of India
Provisions:
Art.217 – Appointment & Conditions of the office of a Judge of a High Court:-
(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 by the President to be a Judge of the Supreme Court or by his being transferred by the President to any other High Court within the territory of India
(2) A person shall not be qualified for appointment as a Judge of a High Court unless he is a citizen of India and
(a) has for at least ten years held a judicial office in the territory of India; or
(b) has for at least ten years been an advocate of a High Court or of two or more such Courts in succession[ii]
Appointment of Chief Justice of High Court:
The Government in consultation with the CJI has decided to appoint the Chief Justice of all High Courts from outside as a matter of policy. During the initial appointment of the Chief Justice of a High Court, the provisions of Art.217 have to be complied with. The transfer of a Chief Justice from one High Court to another is provided under Art.222.For the purpose of elevation to the post of Chief Justice seniority of the Judges in their own High Courts will be taken into consideration as a basis and in other High Courts. A Puisne Judge[iii] in a High Court whose retirement time is one year or less is considered for appointment as the Chief Justice in the same High Court if there is a vacancy in the office of the Chief Justice during such period in that High Court.
During his turn for elevation as Chief Justice an initiation of the proposal for such appointment is made by the CJI. The procedure of appointment should be initiated in time to ensure that there is a completion of at least one month preceding the date of vacancy anticipated for the post of Chief Justice of the High Court. The CJI ensures that where a Chief Justice is transferred from one High Court to another an appointment is made simultaneously for a successor in his office and by practise arranging for an acting Chief Justice should not be made for more than one month.
The CJI would send his recommendation for appointment of a puisne Judge as the Chief Justice of such High Court or another High Court, after consulting with the two senior- most Judges of the Supreme Court. Later, he would analyse the views of the senior most colleagues in the Supreme Court who has knowledge of the affairs of the High Court in which the recommended person has been performing functions and whose opinion is significant in adjudging the suitable candidate. It is of immaterial if the Judge of the Supreme Court, who is consulted has had that High Court as Parent High Court or has been transferred there from any other High Court in the country.
These views of the Judges thus consulted is then sent by the CJI along with his proposal, to the Union Minister, Justice and Company Affairs. After receipt of the recommendation of the CJI, the Union Minister of Law obtains the views of the concerned State Government for such proposal subsequent to which the Union Minister submits the proposals to the Prime Minister, who will then advise the President for selection of the candidate. Once the appointment has been approved by the President, the Department of Justice will announce the appointment and issue a notification in the Gazette of India.
Appointment of permanent judges:
The Chief Justice and Judges of the High Courts are appointed by the President as per clause (1) of Art.217 of the Constitution. Appointments made to the High Court are expected to be time bound schedule so that they are made well in advance before the occurrence of an anticipated vacancy.
Where a permanent vacancy is expected to arise in a particular year in the office of a Judge, the Chief Justice will communicate to the Chief Minister of the State regarding his views as to the persons to be selected for appointment as early as possible but at least 6 months prior to the date of occurrence of vacancy. Complete details of persons recommended, is invariably sent in the format given in Annexure-I. The Chief Justice must consult with two of the senior most colleagues on the Bench with regard to the suitability of proposed names before forwarding his recommendation. All the consultation made must be in writing and the opinions must be sent to the Chief Minister along with such recommendations.
The Chief Justice while sending his recommendation for appointing a permanent Judge, must furnish statistics of month wise disposal of cases and judgments given by the Judge along with the number of cases reported in the Law Journal duly certified by him while giving his recommendation. The information regarding the total number of working days, the number of days he has actually attended the court and the number of days of his absence from the Court during the period for which the statistics are sent is also furnished.
The proposal for appointment of a Judge of a High Court shall be initiated by the Chief Justice of the High Court. However, if the Chief Minister wants to recommend the name of any particular person he must forward it to the Chief Justice in order to obtain his opinion. Since the Governor is bound by the advice of the Chief Minister and his Council of Ministers, a copy of the proposal of the Chief Justice along with the complete set of papers must be sent simultaneously to the Governor to avoid delay.
The Governor as per the advise of the Chief Minister must forward his recommendation with the entire set of papers to the Union Minister of Law as early as possible but not later than six weeks from date of receipt of the proposal from the Chief Justice of the High Court. If no comments are received within the said time frame, it should be presumed that the Governor has nothing to add to the proposal and therefore proceed accordingly.
The Union Minister considers the recommendations made along with the other reports available regarding the names under consideration and then forwards the entire material to the CJI for receiving his advice. The CJI after consulting the two senior most Judges in the Supreme Court, then forms his opinion regarding the person who is to be recommended for appointment as the Judge of the High Court.
Subsequently, the CJI sends his recommendation to the Union Minister of Law, in a course of 4 weeks. This consultation by the CJI with his colleagues should be in writing and all such other exchange of correspondence with his colleagues must be sent to the Union Minister of Law. Once the names are considered and recommended by the CJI, they cannot be referred back to the State Constitutional authorities even if any changes take place in the pendency of office of any post. However, where there is any necessity to refer back the names, the opinion of the CJI must be obtained. The Union Minister of Law then puts up the recommendation of the CJI to the Prime Minister within 3 weeks who will then, advise the President regarding such appointment.
The correspondence between the Chief Justice and the Chief Minister and between the Chief Minister and the Governor, must always be in writing and copies of such correspondence must invariably be forwarded with the Chief Minister’s recommendations.
Once the appointment is approved by the President, the Secretary of Government of India informs the Chief Justice of the High Court, who then obtains
- a certificate of physical fitness signed by a Civil Surgeon or District medical officer as per Annexure II, and
- a certificate of date of birth as per Annexure III from the person selected.
A copy of this communication is also sent to the Chief Minister of the State simultaneously. The medical certificates must be obtained from all selected persons for appointment whether they are in service of the State or not at the time of appointment. When these documents are collected, the Chief Justice then intimates the fact to the Secretary and further forwards these documents to him.
After the warrant of appointment is signed by the President, the Secretary of the Government of India from the Department of Justice informs the Chief Justice and a copy of the communication is sent to the Chief Minister. He then announces the appointment and issues a notification in the Gazette of India.
Appointment Of Additional Judges and Acting Judges:
Additional Judges to a Court may be appointed by the President of India as specified under clause (1) of Art.224 of the Constitution. When a need for such appointment arises, the State Government first obtains the sanction of the Central Government for creation of the post of an additional judge. The correspondence regarding this must be in the normal official form. Subsequent to the sanction of such post, the procedure similar to the appointment of a permanent Judge is to be followed, except that a medical certificate is not necessary from the person who is appointed as an Additional Judge.
Where an Additional Judge is considered for confirmation as the Additional Judge for the first time, the relevant documents as mentioned above also must be sent by the Chief Justice of the High Court concerned along with the necessary recommendation. However, the Chief Justice cannot make a recommendation for Additional Judge when there is a Permanent Judge vacancy in the High Court.
Acting Judges may be appointed by the President as per Art.224(2) of the Constitution. Such appointments are not made for periods less than three months unless there are special reasons. Where such an appointment is necessary, similar procedure for the appointment of an Additional Judge is followed.
Conclusion:
One of the most important persons in the Judicial System is the Judge of the Court. He is the discretionary authority acting for the benefit of the people of the State and he plays a crucial role in being the protector of rights of the people.
Edited by Pragash Boopal
Approved & Published – Sakshi Raje
Reference
[i] https://doj.gov.in/about-us/introduction
[ii] https://indiankanoon.org/doc/1682952/
[iii] https://thelawdictionary.org/puisne-l/
