Gujarat high court advocates’ strike fully justified

High courts are on the warpath against the Centre for non-appointment of judges in the Gujarat high court. Against 42 sanctioned posts of high court judges, only 22 are working while the remaining 20 posts are vacant.

Never have all the 42 posts been filled up and worse, the posts falling vacant by reason of retirement or transfers have not been filled up for long. Lists have been sent to the Centre about this, but they have remained pending for long.

Since 2009, two proposals of eight names are pending with the central authorities and nothing is known about what has happened to them. As a large number of cases have been kept in abeyance for long and the judges are over-burdened and working under pressure and stress, the advocates' grievances are absolutely right. Also, more legitimate and real is the grievance of people who approach the high court for justice and are denied the same.

Even in the light of the Supreme Court judgment against the lawyers' strike, the strike by the Gujarat high court advocates is fully justified and there was no other alternative left. The question is: Where lies the problem?

Just look at the method of appointment of high court judges. Under Article 217 of the Constitution, "Every judge of the high court shall be appointed by the President by warrant under his Round 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…"

Thus the appointment of high court judges involves four authorities, namely the President (i.e. Union government), the Chief Justice of India, the governor of the state (i.e. the state government) and the chief justice of the state. Normally, the proposal starts from the chief justice of the high court, passes through the state government, then the Chief Justice of India and finally, the Central government.

Untill 1993, the process of appointment strictly followed Article 217 and the ultimate primacy used to lie with the Central government. In the Judges Case (AIR 1982 SC 149), the Supreme Court decided that after full and effective consultation with the three Constitutional functionaries, the President (in effect, the central government) will finally decide. After the Second Judges Case (AIR 1994 SC 268) and the Third Judges Case (AIR 1999 SC 1), the Supreme Court emphasised an "integrated participatory consultative process" for selecting the best and the most suitable person available for appointment in which "all the Constitutional functionaries must perform this duty collectively with a view primarily to reach an agreed decision, subserving the Constitutional purpose, so that the occasion of primacy does not arise."

However, in case of disagreement between the President and the CJI, the opinion of the Chief Justice of India must prevail. The primacy of the Chief Justice of India in the matter of appointment in the higher judiciary is, according to Justice Krishna Iyer, by way of "unconstitutional amendment of the Constitution." However, the judgement stands today. The present position is that the process of appointment is initiated by the chief justice of the state, working in the collegium of four senior high court judges and after consultation with the state government, reaches the Chief Justice of India.

The CJI in the collegium of four senior judges of the Supreme Court takes decision and sends its proposal to the Central government (the president). In case of disagreement between the President and the SC collegium, the latter prevails.

Though the earlier process was criticised on the ground of many political considerations, the latter is also not free from severe criticism. Justice Krishna Iyer wrote, "For one, the office itself is fast being politicised and corrupted.

For another, they have their own secretive politics, communal perceptions, favouritism and patronage factor and wheeler dealer operations whit the political rulers (for their own purposes) that undeserving names are not uncommon in the panels of chief justices."