Acting Chief Justice and Judicial Appointments in High Courts

Context

The Supreme Court Collegium is considering at least four recommendations for appointment as High Court judges made by Justice Sanjeev Prakash Sharma, the Acting Chief Justice of the Rajasthan High Court.  

Justice Sharma has held the post since September 2025, reviving debate over the convention governing judicial recommendations made by an Acting Chief Justice.

Constitutional Position of Acting Chief Justice of a High Court

1. Article 223 of the Constitution provides for an Acting Chief Justice when the office of Chief Justice of a High Court is vacant or the incumbent is unable to perform its functions.
2. The Constitution does not expressly prohibit an Acting Chief Justice from recommending candidates for appointment as High Court judges.
3. The general restraint on making such recommendations is based on convention and institutional practice, rather than a statutory prohibition.

Collegium System

1. The Collegium system for appointments and transfers in the higher judiciary evolved through a series of Supreme Court judgments.
2. Recommendations for High Court judges are initiated at the High Court level and subsequently examined by the Supreme Court Collegium.
3. For the appointment of High Court judges, the Supreme Court Collegium comprises the Chief Justice of India and the two senior-most judges of the Supreme Court.

Convention and Past Practice

1. Acting Chief Justices generally refrain from recommending candidates because judicial selection requires detailed assessment, consultation and familiarity with the local Bar and judicial environment. However, past practice does not establish an absolute prohibition.
2. Bombay High Court, 2020: An Acting Chief Justice prepared a list of 22 candidates. Following differing views among consultee judges, the Collegium forwarded 18 names to the Centre. The Centre returned the list, after which a fresh panel was prepared.
3. Rajasthan High Court, 2022: The Centre raised concerns over 12 recommendations made by the then Chief Justice near the end of his tenure and subsequently cleared 8 names.

These instances indicate that recommendations made during acting or transitional periods have been dealt with according to the circumstances of each case.

Rajasthan Controversy

1. The issue has emerged alongside complaints regarding the functioning of the Acting Chief Justice of the Rajasthan High Court.
2. A Supreme Court judge and former Rajasthan High Court judge wrote to the CJI seeking the appointment of a regular Chief Justice and raised concerns regarding the High Court’s administrative functioning.
3. The allegations relate to issues such as case listings, administrative powers and the treatment of fellow judges. These remain allegations and should not be treated as established findings.
4. The CJI has indicated that such matters must be examined through appropriate institutional procedures and due process, with the concerned judge given an opportunity to respond.

Significance

1. Judicial vacancies: Uncertainty in the appointment process can further delay the filling of High Court vacancies.
2. Quality of appointments: Flexibility in exceptional situations must be balanced with rigorous scrutiny of candidates.
3. Institutional stability: Prolonged acting arrangements can affect continuity in the administrative leadership of High Courts.
4. Procedural clarity: Written norms could promote consistency while safeguarding judicial independence.

Way Forward

1. Establish clear written guidelines for recommendations made by Acting Chief Justices.
2. Maintain consistent standards of merit, integrity, competence and consultation.
3. Ensure timely appointment of regular Chief Justices to minimise prolonged acting arrangements.

Conclusion

The issue highlights the need to balance institutional continuity with judicial independence and procedural certainty. Clearer conventions for acting arrangements can reduce ambiguity while ensuring that judicial appointments remain guided by merit, integrity and due process.

FAQs

Q1. Which constitutional provision deals with an Acting Chief Justice of a High Court?
Ans: Article 223 provides for an Acting Chief Justice when the office is vacant or the Chief Justice is unable to perform the functions of the office.

Q2. Is an Acting Chief Justice constitutionally prohibited from recommending judges?
Ans: No. There is no express constitutional or statutory prohibition. The general restraint arises from convention and institutional practice.

Q3. What is the Collegium system?
Ans: It is a judicially evolved mechanism for recommending appointments and transfers in the higher judiciary. It developed through Supreme Court judgments.

Q4. What are consultee judges?
Ans: They are judges whose views are sought during the appointment process because of their familiarity with the concerned High Court and its legal environment.

Q5. What did the Bombay High Court episode of 2020 demonstrate?
Ans: It showed that recommendations made during an Acting Chief Justice’s tenure could be examined and subjected to scrutiny rather than being automatically accepted.

Q6. Why is the present Rajasthan case significant?
Ans: It may clarify how recommendations made by a long-serving Acting Chief Justice should be treated when no express legal prohibition exists.

Q7. How should allegations against a sitting judge be handled?
Ans: They should be examined through established institutional procedures and due process. Allegations alone cannot be treated as proof of misconduct.