Article 217

Article 217 of the Constitution of India governs the appointment, tenure, qualifications, and conditions of service of judges in the High Courts. It is one of the most significant provisions ensuring the independence, integrity, and efficient functioning of the higher judiciary at the state level. By clearly outlining the process of appointment and removal, it maintains a balance between executive participation and judicial autonomy.

Appointment of High Court Judges

Under Article 217(1), every judge of a High Court is appointed by the President of India by a warrant under his hand and seal. The President acts in consultation with:

• The Chief Justice of India (CJI),
• The Governor of the concerned state, and
• In the case of appointment of judges other than the Chief Justice, the Chief Justice of that High Court.

This process ensures a collaborative approach involving both the executive and the judiciary. Judges appointed under this provision hold office until they attain the age of 62 years. This retirement age was originally 60 years but was raised to 62 by the 15th Constitutional Amendment Act, 1963, in order to retain experienced judges for longer periods and address the increasing burden of cases in the High Courts.
The appointment of additional and acting judges is separately provided under Article 224, which allows temporary appointments to manage fluctuations in workload or fill vacancies.

Tenure, Resignation, and Removal

A judge of a High Court holds office until the age of 62 unless they resign, are removed, or are transferred.

• Resignation: A judge may resign by writing under their hand addressed to the President of India.
• Removal: A High Court judge can be removed only in the manner prescribed in Article 124(4), which is the same procedure used for the removal of Supreme Court judges. This involves an impeachment process requiring a special majority in both Houses of Parliament on the grounds of proved misbehaviour or incapacity.
• Vacation of Office: A judge’s office becomes vacant upon appointment to the Supreme Court or transfer to another High Court by the President under Article 222.

The strict procedure for removal reflects the framers’ intent to protect judicial independence and prevent arbitrary interference by the executive or legislature.

Qualifications for Appointment

Article 217(2) prescribes the qualifications required for appointment as a judge of a High Court. A person is eligible if they:

• Are a citizen of India, and
• Have held a judicial office in India for at least ten years, or
• Have been an advocate of a High Court (or of two or more such courts in succession) for at least ten years.

Explanation to the Qualifications

The Constitution provides flexibility in interpreting the qualifying service:

• Time spent as a judicial officer includes any subsequent period served as an advocate or in a post under the Union or State requiring special legal knowledge.
• Similarly, time spent as an advocate includes the period served as a judicial officer or in a legal post after enrolment as an advocate.
• Service rendered in India before 15 August 1947 under the Government of India Act, 1935, is also counted for the purpose of calculating experience.

There is no minimum age limit and no prescribed educational qualification, other than the experience criteria, making the emphasis purely on practical legal expertise and judicial experience.

Determination of the Age of Judges

Any question relating to the age of a High Court judge is decided by the President of India, whose decision is final. However, the President must make this determination after consultation with the Chief Justice of India, ensuring that the judiciary has a decisive voice in resolving such disputes.

Key Judicial Pronouncements

The judicial interpretation of Article 217 has evolved through several landmark Supreme Court decisions, which have clarified the scope of consultation, the process of appointment, and the limits of executive power:

• S.P. Gupta v. Union of India (1981): Known as the First Judges’ Case, this judgment held that the President was not bound by the advice of the CJI, giving the executive a dominant role.
• Supreme Court Advocates-on-Record Association v. Union of India (1993): The Second Judges’ Case reversed the earlier view, holding that “consultation” implies concurrence, thereby giving primacy to the judiciary.
• In re: Special Reference No. 1 of 1998: This established the collegium system, where the CJI must consult a plurality of judges in judicial appointments, ensuring collective decision-making.
• Union of India v. Sankalchand Himatlal Sheth (1977): The Supreme Court ruled that the transfer of judges between High Courts requires mandatory consultation with the CJI.
• K. Veeraswami v. Union of India (1991): Clarified that removal of a High Court judge must follow the procedure laid down in Article 124(4).
• Mahesh Chandra Gupta v. Union of India (2009): The Court held that the scope of judicial review in appointment matters is limited to questions of eligibility and effective consultation.

These decisions collectively shaped the collegium system, which continues to guide judicial appointments in India, reinforcing the constitutional doctrine of judicial independence.

Related Constitutional Provisions

Several other Articles complement the framework established by Article 217:

• Article 124 – Governs the appointment and removal of Supreme Court judges, applicable to High Courts by reference.
• Article 219 – Prescribes the oath or affirmation to be taken by High Court judges before assuming office.
• Article 221 – Deals with the salaries and allowances of judges, ensuring financial security.
• Article 222 – Enables the transfer of judges from one High Court to another by the President after consultation with the CJI.
• Article 224 – Provides for additional and acting judges to manage temporary caseloads.

Together, these Articles ensure a coherent constitutional mechanism that safeguards both the independence and accountability of the High Court judiciary.

Notable Features and Facts

• The retirement age for High Court judges is 62 years, while for Supreme Court judges it is 65 years.
• There is no fixed tenure; judges serve until retirement unless they resign, are removed, or are transferred.
• The oath of office is administered under Article 219, affirming allegiance to the Constitution and the discharge of duties without fear or favour.
• Salaries and allowances are determined under Article 221 and are charged on the Consolidated Fund of the State, ensuring financial independence.
• Judges can be transferred between High Courts under Article 222, with mandatory consultation with the CJI.
• The impeachment process under Article 124(4) remains the only method for removal, underscoring the protection of judicial tenure.

Significance of Article 217

Article 217 holds immense constitutional significance as it establishes the legal and procedural framework for the appointment and service of High Court judges. It ensures that judicial appointments are based on merit, experience, and consultation rather than political influence. The consultative process involving the President, the Chief Justice of India, and the Governor serves as a constitutional safeguard against arbitrariness.