Appointment of HC judges

By Adv. RS Agrawal

BY the judgment in the case of – Advocate Uday Kumar v. Union Ministry of Law and Justice, Secretary General, Supreme Court of India and others, delivered on May 28, 2024, by Acting Chief Justice Sheel Nagu and Justice Amar Nath (Keshawani), at . The Madhya Pradesh High Court at Jabalpur, while upholding the appointment of seven new judges of the Supreme Court, has made it abundantly clear that since the office of a judge of the Supreme Court is a Constitutional office which is filled only through the procedures laid down in the Constitution and not where else. “No law or statutory provision or implementing instruction may replace or therefore supplement the procedure provided for in the Constitution for the appointment of a judge of the Supreme Court. Therefore, since the Constitution does not mandate the publication of advertisements or the conduct of selection by written test or vive voce, there can be no allegation of failure in the procedure followed,” the High Court further said. According to the HC, the petitioner appears to be under the false belief that the office of a HC judge is comparable to a civilian post under the executive. This is far from reality as the office of HC judge is a constitutional office. Just reading the article. 217 section 2 letter b) of the Constitution regarding the appointment and conditions of holding the office of a judge of the Supreme Court shows that the minimum criteria required for a lawyer to be appointed to the position of a HC judge are: practicing the profession of lawyer for a period of at least 10 years.

This does not mean that all lawyers who have been practicing in the HC for at least 10 years must necessarily be considered by the HC board and the Supreme Court. The concept of collegiums does not exist in the Constitution but has been recognized as the primary selecting body for the appointment of a HC judge under the law passed by the judge in a series of judgments of the Supreme Court in the case of S.P. Gupta v. Union of India and Another – 1981 Whatever. SCC 87, Supreme Court AoRA and others v. Union of India – (1993) 4 SCC 441; Special Reference No. 1 of 1998, RE:,(1998)7SCC 739 and SC AoRA and Another v. Union of India(2016) 5 SCC 1. Relevant portions of the decision in SC AoRA and Others v. Union of India India-(1993) ) 4 SCC 441 is quoted here for reference: “175. There is no doubt that merit-based selection is the dominant method of judicial selection, and selected candidates must have high integrity, honesty skills, a high level of emotional stability, decisiveness, cheerfulness, legal soundness, ability and endurance. In addition, the most important qualities required for personal qualifications are moral vigor, ethical firmness and resistance to corrupt or venal influences, humility or lack of connections, judicial temperament, enthusiasm and ability to work.

In the Texas Law Review, (Vol. 44) 1966, pages 1068 and 1071, the following passages emphasize the desirable qualities of judges: “It is easy to understand why active judges find noble inner qualities highly desirable. It is also natural that they rate good reputation as the highest. A man or woman’s good name… is the immediate jewel of their souls, said Shakespeare, and the Judges share with you and me a fondness for such treasures. And when it comes to health, is there anyone who doesn’t value it? Nobility and virtue, good name and prosperity – these things are never out of place. In a man who holds power and enjoys the position of Judge, they are more than welcome. No one running for judgeship would boast that he had none of them, and no appointing authority would seek men without them.” “It is high time for all concerned to understand that, for the reasons stated above, there can be no connection between the working conditions of judges and the working conditions of members of other services. Equality of status no longer exists between the judiciary and the administrative executive, but between the judiciary and the political executive.

Under the Constitution, the judiciary is above the administrative executive and any attempt to equate it with the executive should be discouraged. Through this petition, the validity and legality of the Notification issued on November 2, 2023 by the Department of Justice of the Union Ministry of Law and Justice, pursuant to which the appointment of 7 judges of the High Court of Madhya Pradesh was made by the President of India was sought. questioned. The names of these judges are M/s Vinay Saraf, Vivek Jain, Rajendra Kumar Vani, Pramod Kumar Agrawal, Binod Kumar Dwivedi, Dev Narayan Mishra and Gajendra Singh. The College owes its existence and legal sanctity to judicial law, which, in accordance with Art. 141 of the Constitution is national law and applies not only to every court, but also to the executive and legislative authorities. As to the second allegation, the petitioner appears to be guided by the false belief that the office of Supreme Court judge is comparable to a civilian position under the executive branch. This is far from reality, because the office of a Judge of the Supreme Audit Office is a constitutional office which is held only in accordance with the procedure provided for in the Constitution, and not elsewhere. In another plea, the petitioner alleged that adequate and proper representation of all categories – SC/ST, OBC or EWS – was not ensured in the appointment of the HC judge.

In this regard, it is seen that neither the Constitution nor the law made by the judges mentioned above provides for any reservation or adequate/proportionate representation of all categories in the nomination process. Therefore, ensuring such a reservation or appropriate/proportional representation of all categories would not only be a rebuke to the provisions of the Constitution, but also to the law established in the light of the above judgments of the Supreme Court. The argument that the collegium at the Supreme Court and Supreme Court level has a very large representation of forward class judges (unreserved category). As already stated, although the Constitution does not provide for any reservation or adequate or proportionate representation of all categories, any attempt to accede to the petitioner’s request would amount to a violation of the constitutional provision. In conclusion, since the Madhya Pradesh HC has no doubt that the relief sought by the petitioner cannot be granted, therefore, the House dismissed the writ petition against the appointment of the new seven judges.