Why in news?

• In an unprecedented move, Justice Abhijit Gangopadhyay, a sitting judge of the Calcutta High Court, said that he will resign as a judge and join politics.

What’s in today’s article?

• Procedure to appoint judges of High Courts
• News Summary

Procedure to appoint judges of High Courts

• Constitutional Provision
  • 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.
      • The collegium system takes a call on the issue of elevation of Judges.
      • For the promotion to Chief Justices, the seniority of judges below the Chief Justice will be based on their rank within their own High Courts.
      • They will be eligible for consideration as Chief Justices in other High Courts when it would have been their turn for consideration in their own High Courts.
• 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 senior most judges of SC.
    • Opinion of all members of the collegium should be in writing.
• Resigning/Removal of judges of High Courts
  • A Judge may, by writing under his hand addressed to the President, resign his office;
  • 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 (impeachment process).

News Summary: Calcutta HC judge Abhijit Gangopadhyay to resign

• The judge, who is due to retire in August 2024, has been at the centre of controversy for his frequent remarks against his own colleagues, the ruling party of West Bengal and its leaders.

Justice Abhijit Gangopadhyay to resign - Analysis

• Not a new phenomenon
  • A sitting judge of a Constitutional court resigning to join politics is not new.
  • Former CJI Koka Subba Rao in 1967 had resigned three months before his retirement to contest Presidential elections as the Opposition candidate against Congress’s Zakir Hussain.
  • Barely six weeks before his retirement, former SC judge Baharul Islam resigned in 1983 to contest the Lok Sabha elections from Barpeta, Assam.
• Debate around the independence of the judiciary
  • The recent announcement by the Abhijit Gangopadhyay marks a telling moment in the discourse around the independence of the judiciary.
  • It comes at a time when the bar in the state is deeply divided, reflecting – and sometimes shaped by – the fault-lines of the state’s politics.
  • Moreover, for more than two years, both in his judicial orders and in media interviews, Justice Gangopadhyay has attacked the ruling party of WB.
  • Against these backdrops, Justice Gangopadhyay’s decision would send a bad message about the judiciary.
    • It is not in judicial temperament to be hearing cases, deciding for or against the government till a week ago, and then to resign and join politics when elections are announced.
    • It raises questions over the independence of judiciary.
• No internal mechanism to maintain judicial discipline
  • There is no mechanism to deal with judges for crossing the line between judicial discipline and entering politics, while still in office.