Appointing High Court Judges—I

As of 17 January 2022, out of a total of 1,098 posts of high court judges, 411 or about 37% are vacant (Department of Justice 2022). This is not an exceptional situation and has persisted for a while now, notwithstanding the increase in the sanctioned number of high court judges back in 2014. One possible cause for this is that the appointment procedure of high court judges is the most constitutionally complex one. It involves the Chief Justice of the High Court, the Chief Justice of India, the governor of the state, and the President of India—no fewer than four.¹ In contrast, no more than two authorities are involved in the appointment of district (high court of the state and governor) and Supreme Court judges (Chief Justice of India and President). In practice and consequent to the Supreme Court of India’s judgment in the second² and third³ judges’ cases, the appointment actually involves the three senior-most high court judges in question, the three senior-most Supreme Court judges, and other Supreme Court judges familiar with the high court in question.

The minutiae of appointment process of high court judges is contained in the Memorandum of Procedure (MoP) for the appointment of high court judges (Department of Justice nd). This document outlines the responsibilities and powers of the various stakeholders at various steps in the appointment process. While there is no statutory or constitutional basis for the MoP, it is supposed to be adhered to by all concerned in compliance with the Third Judges case.