Appointment and conditions of the office of a Judge of a High Court

Article 193, Draft Constitution 1948

(1) Every judge of a High Court shall be appointed by the President by a warrant under his hand 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 of the State, and shall hold office until he attains the age of sixty years or such higher age not exceeding sixty-five years as may be fixed in this behalf by law of the Legislature of the State:

Provided that-

(a) A judge may, by writing under his hand addressed to the Governor, resign his office;

(b) A judge may be removed from his office by the President in the manner provided in clause (4) of article 103 of this Constitution for the removal of a judge of the Supreme Court;

(c) The office of the judge shall be vacated by his being appointed by the President to be a judge of the Supreme Court or of any other High Court.

(2) A person shall not be qualified for appointment as a judge of a High Court unless he is a citizen of India and-

(a) Has held for at least ten years a judicial office in any State in or for which there is a High Court; or

(b) Has been for at least ten years an advocate of a High Court or of two or more such courts in succession.

Explanation I.-For the purposes of this clause-

(a) In computing the period during which a person has been an advocate of a High Court, there shall be included any period during which a person held judicial office after he became an advocate;

(b) In computing the period during which a person has held judicial office in a State for the time being specified in Part I or Part II of the First Schedule or been an advocate of a High Court, there shall be included any period before the commencement of this Constitution during which he held judicial office in any area which was comprised before the fifteenth day of August, 1947, within British India as defined by the Government of India Act, 1935, or has been an advocate of any High Court in any such area, as the case may be.

Explanation II.-In sub-clauses .(a) and (b) of this clause, the reference to a High Court shall be construed as including a reference to a court in a State for the time being specified in Part III of the First Schedule which is a High Court for the purposes of articles 103 and 106 of this Constitution.

Article 217, Constitution of India 1950

(1) 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, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court, and shall hold office until he attains the age of sixty years:

⁠Provided that—

(a) a Judge may, by writing under his hand addressed to the President, resign his office;

(b) 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;

(c) the office of a Judge shall be vacated by his being appointed by the President to be a Judge of the Supreme Court or by his being transferred by the President to any other High Court within the territory of India.

(2) A person shall not be qualified for appointment as a Judge of a High Court unless he is a citizen of India and—

(a) has for at least ten years held a judicial office in the territory of India; or

(b) 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.

Explanation.—For the purposes of this clause—

(a) in computing the period during which a person has been an advocate of a High Court, there shall be included any period during which the person has held judicial office after he became an advocate;

(b) in computing the period during which a person has held judicial office in the territory of India or been an advocate of a High Court, there shall be included any period before the commencement of this Constitution during which he has held judicial office in any area which was comprised before the fifteenth day of August, 1947, within India as defined by the Government of India Act, 1935, or has been an advocate of any High Court in any such area, as the case may be.

Draft Article 193 (Article 217) was debated on 6 and 7 June 1949. It laid down the procedure for appointment and conditions of service for judges of the High Court.

The assembly took issue with clause (1), with one member suggesting that the Governor should only be consulted, while the Chief Justice of the High Court should issue a ‘recommendation’. Another argued that Governor did not need to be consulted at all, while a third proposed that the Draft Article should be reworded to reflect Draft Article 103 (Article 124) on the appointment of Supreme Court judges. All these amendments were negatived, with one member arguing that it was not necessary to mirror all provisions on the Supreme Court.

A member suggested that the State Legislature should play a more important role in the removal of a Judge of the High Court of that State, arguing that the current Draft Article gave too much power to the President and the Parliament. This amendment was negatived.

One member suggested that age of retirement should be 63, while another believed that this should not be fixed by the Constitution, and instead it was best to rely on the existing custom of judges retiring at 60. A third member also wanted to remove age limits on service, arguing that it should be left to the wisdom of individual judges to decide when they are unable to continue their service. While the former amendments were rejected, the latter was accepted by the assembly.

Ultimately, the Assembly accepted a number of smaller amendments to the Draft Article, while others were negatived. The amended Draft Article was adopted on 7 June 1949.