Can an Acting Chief Justice Recommend High Court Judges? Collegium System Explained
A seemingly technical question about judicial appointments has opened a much larger constitutional debate: can an Acting Chief Justice of a High Court recommend names for appointment as judges, or should such decisions wait for a permanent Chief Justice?
The issue has come into focus after the Acting Chief Justice of the Rajasthan High Court, Justice Sanjeev Prakash Sharma, reportedly recommended at least four names for appointment as High Court judges. The recommendations are expected to come before the Supreme Court Collegium for consideration.
At first glance, the question may appear simple. An Acting Chief Justice performs the duties of the Chief Justice, so why should recommending judges be different?
The difficulty is that judicial appointments in India are governed not only by the text of the Constitution but also by Supreme Court judgments, the Memorandum of Procedure (MoP) and long-established conventions. The Constitution does not expressly say that an Acting Chief Justice cannot initiate recommendations. At the same time, Acting Chief Justices have traditionally been cautious about taking decisions that may have a long-term impact on the composition of a High Court.
That makes the present issue important well beyond Rajasthan. It touches the larger debate over judicial independence, the Collegium system, constitutional convention and vacancies in the higher judiciary.
What does the Constitution say?
The starting point is Article 217 of the Constitution, which deals with the appointment and conditions of office of High Court judges.
High Court judges are formally appointed by the President of India. The constitutional system requires consultation with the relevant constitutional authorities, and the process today operates through the Collegium system developed by the Supreme Court.
But the present controversy is more directly connected with Article 223.
Article 223 provides that when the office of Chief Justice of a High Court is vacant, or when the Chief Justice is unable to perform the duties of office because of absence or another reason, the President may appoint another judge of that High Court to perform the duties of Chief Justice.
In simple terms:
Permanent Chief Justice unavailable
↓
President appoints another High Court judge
↓
That judge functions as Acting Chief Justice
The important phrase is that the Acting Chief Justice performs the “duties of the office”.
The Constitution itself does not create a list saying that an Acting Chief Justice may perform some duties but not others.
This is one reason why the current question is not straightforward.
Then why is there a controversy?
The difficulty comes from convention.
An Acting Chief Justice normally occupies the position temporarily. A permanent Chief Justice may be appointed or transferred to the court later.
Recommending someone for appointment as a High Court judge, however, has consequences that can last for years.
Once appointed, a permanent High Court judge normally serves until the age of 62, unless the judge resigns, is transferred, is elevated to the Supreme Court or is removed through the constitutional process.
For that reason, a convention developed that Acting Chief Justices should generally avoid initiating major judicial appointments unless there is a compelling reason to do so.
But a convention is not necessarily the same as a constitutional prohibition.
That distinction lies at the heart of the present debate.
What does the Memorandum of Procedure say?
The Memorandum of Procedure, or MoP, sets out the working process followed for appointments to the Supreme Court and High Courts.
According to the Department of Justice, the responsibility for initiating proposals for appointment of High Court judges lies with the Chief Justice of the concerned High Court, acting in consultation with the two senior-most puisne judges of that court.
A puisne judge simply means a judge of the court other than the Chief Justice.
So at the High Court level, the Collegium is essentially:
Chief Justice of the High Court
Two senior-most judges
The MoP refers to the Chief Justice of the High Court. The present debate is whether an Acting Chief Justice who is constitutionally performing the duties of that office should be treated in exactly the same way for this purpose.
There is no simple sentence in the Constitution saying, “An Acting Chief Justice cannot make recommendations.”
That is why the Supreme Court Collegium’s treatment of the Rajasthan recommendations could become important for future practice.
How is a High Court judge actually appointed?
It is useful to understand the process because judges are not appointed simply because a High Court Collegium sends a name.
The process involves several stages.
Stage 1: High Court Collegium
The Chief Justice of the High Court, in consultation with the two senior-most judges, considers suitable candidates.
Candidates may come from:
- the Bar, meaning practising advocates; or
- the judicial service.
The Collegium examines matters such as professional ability, integrity, experience and suitability.
Stage 2: State and Central governments
The proposal passes through the concerned State Government and the Union Government.
Government inputs and other available reports concerning the candidate may also be considered.
Stage 3: Supreme Court Collegium
The proposal then reaches the Supreme Court Collegium.
For appointments to High Courts, the Supreme Court Collegium examines the names before giving its advice.
The Department of Justice has made the position clear: only candidates recommended by the Supreme Court Collegium can ultimately be appointed as High Court judges.
Stage 4: Formal appointment
After the constitutional process is completed, the appointment is formally made by the President of India.
So the High Court Collegium begins an important part of the process, but it does not have the final word.
Where did the Collegium system come from?
An important point for Prelims and Mains is that the word “Collegium” does not appear in the Constitution.
The system developed through a series of Supreme Court judgments known as the Judges Cases.
First Judges Case — 1981
In S. P. Gupta v. Union of India, the Supreme Court initially gave greater weight to the executive in the judicial appointment process.
Second Judges Case — 1993
The position changed substantially in Supreme Court Advocates-on-Record Association v. Union of India.
The Supreme Court held that judicial independence required greater primacy for the judiciary in appointments.
This judgment laid the foundation of the modern Collegium system.
Third Judges Case — 1998
In a Presidential Reference, the Supreme Court further clarified how the Collegium should function and expanded the consultative process.
The Supreme Court itself has described the Third Judges Case as an extension and institutionalisation of principles developed in the Second Judges Case.
The present appointment system therefore comes from a combination of:
Constitutional provisions + Supreme Court judgments + Memorandum of Procedure
What happened to the NJAC?
The Collegium system has long faced criticism, particularly over transparency and accountability.
Parliament attempted to replace it through the 99th Constitutional Amendment Act, 2014 and the National Judicial Appointments Commission Act, 2014.
The proposed National Judicial Appointments Commission (NJAC) would have included members from both the judiciary and outside it.
However, in 2015, the Supreme Court struck down the 99th Constitutional Amendment and the NJAC Act as unconstitutional.
The Court held that the arrangement threatened the independence of the judiciary, which forms part of the Constitution's basic structure.
As a result, the earlier Collegium system was restored.
This remains one of the most important constitutional debates surrounding judicial appointments in India.
So, can an Acting Chief Justice recommend judges?
The most accurate answer at present is:
There is no clear express constitutional prohibition, but convention has generally favoured restraint.
Article 223 says that an Acting Chief Justice performs the duties of the office of Chief Justice.
The MoP gives the Chief Justice of the concerned High Court responsibility for initiating recommendations along with the two senior-most judges.
What is less clear is whether the temporary nature of an Acting Chief Justice's tenure should limit the exercise of this particular institutional function.
That is exactly why the Rajasthan case matters.
The Supreme Court Collegium could:
- consider the recommendations normally;
- decline to act on them;
- wait for a permanent Chief Justice; or
- clarify a broader principle for future cases.
Until there is a clear institutional decision, it would be incorrect to say either that Acting Chief Justices always have this power or that they are absolutely barred from exercising it.
Why might someone argue that an Acting Chief Justice should be allowed to recommend names?
There are strong practical reasons.
High Courts across India frequently face vacancies.
The process of appointing judges is already lengthy. If a court remains under an Acting Chief Justice for many months and no recommendations can be initiated during that period, vacancies may grow further.
This can affect:
- disposal of cases,
- size of benches,
- hearing of appeals,
- constitutional cases and
- overall judicial pendency.
There is also a constitutional argument.
If Article 223 gives an Acting Chief Justice the duty of performing the functions of the Chief Justice, it may be difficult to argue that an important administrative function should automatically be excluded when the Constitution itself does not make that distinction.
What is the argument for restraint?
The opposite argument is also significant.
A permanent Chief Justice is expected to lead the High Court for a longer period and may have greater institutional legitimacy when shaping the future composition of the court.
An Acting Chief Justice may hold office only briefly.
A person in a temporary position recommending several judges could therefore influence the High Court long after leaving the Chief Justice's office.
There is another institutional concern.
If an Acting Chief Justice begins making major recommendations shortly before a permanent Chief Justice is expected to take office, the incoming Chief Justice may inherit appointments in which he or she had no role.
Supporters of the convention therefore argue that restraint protects institutional continuity.
The issue is ultimately a balance between:
continuity of judicial appointments
and
caution in the exercise of long-term powers by temporary office-holders.
Why Rajasthan has brought the issue back
The present debate has arisen in a wider period of institutional tension concerning the Rajasthan High Court.
According to The Indian Express, Chief Justice of India Surya Kant recently sought comments from the concerned sides in relation to issues involving Supreme Court judge Justice Sandeep Mehta and Rajasthan High Court Acting Chief Justice Justice S. P. Sharma.
The separate controversy should not be confused with the constitutional question over appointments.
For exam purposes, the more important issue is whether an Acting Chief Justice's recommendation is valid within the Collegium framework.
The Supreme Court Collegium's response may offer useful guidance.
Why judicial vacancies matter
It is easy to treat the appointment procedure as an internal matter of the judiciary, but vacancies have consequences for ordinary citizens.
When a High Court has too few judges, cases take longer to reach hearing.
Delays can affect:
- criminal appeals,
- bail matters,
- commercial disputes,
- tax cases,
- service matters,
- constitutional challenges and
- ordinary civil litigation.
The government itself describes filling vacancies in the higher judiciary as a continuous, integrated and collaborative process involving both the executive and judiciary.
This is why procedural delays at any stage of appointments matter.
A system designed to protect judicial independence must also be capable of filling vacancies in reasonable time.
Is the Collegium entirely controlled by judges?
The phrase “judges appoint judges” is often used to describe the Collegium system, but it oversimplifies the process.
The judiciary has the decisive role in recommending candidates, particularly because a High Court judge cannot ultimately be appointed without a recommendation from the Supreme Court Collegium.
But the executive also participates in the process.
State Governments and the Union Government provide inputs, process files and may return recommendations for reconsideration.
The formal appointment is made by the President.
It is therefore better to describe the process as one where the judiciary has primacy in selection, while several constitutional authorities participate at different stages.
Why does judicial independence matter?
The reason judicial appointments receive such constitutional protection is simple.
Judges frequently decide cases involving the government itself.
They may review:
- laws passed by Parliament,
- executive decisions,
- arrests,
- government contracts,
- constitutional amendments and
- actions of public authorities.
If the executive could freely appoint judges who were dependent on it, the independence of constitutional courts could be weakened.
The Supreme Court has repeatedly connected the appointment process with the independence of the judiciary, which is recognised as part of the Constitution's basic structure.
But independence must also coexist with demands for:
- transparency,
- diversity,
- accountability and
- timely appointments.
That is why the debate over the Collegium has never fully disappeared.
What are the major criticisms of the Collegium?
The Collegium system protects the judiciary from direct executive control, but it also faces serious criticism.
Lack of transparency
Much of the discussion surrounding individual candidates is confidential.
The Supreme Court now publishes Collegium resolutions, which has improved transparency to some extent, but detailed reasons are not always publicly available. Recent resolutions continue to be published on the Supreme Court's official Collegium portal.
No formal secretariat created by the Constitution
The Collegium is a judge-made institutional system rather than a commission directly designed in the constitutional text.
Questions over diversity
There have been repeated concerns about representation of:
- women,
- Scheduled Castes,
- Scheduled Tribes,
- OBCs,
- minorities and
- first-generation lawyers.
The government has said it regularly asks High Court Chief Justices to consider social diversity while recommending candidates.
Delays
Appointments can remain pending at several stages, contributing to persistent vacancies.
Accountability
Because the judiciary has substantial control over recommendations, critics ask how incorrect or inconsistent choices should be reviewed.
None of these criticisms automatically means executive control would be better. They show why judicial appointments remain one of the hardest constitutional design questions in India.
Acting Chief Justice and Acting Judge are not the same
This distinction can be useful in Prelims.
Article 223
Deals with the Acting Chief Justice of a High Court.
The person is already a judge of that High Court and temporarily performs the duties of the Chief Justice.
Article 224
Deals with additional and acting judges of High Courts in situations such as temporary increases in workload, arrears or temporary inability of a sitting judge to perform duties.
So:
Article 223 → Acting Chief Justice
Article 224 → Additional and acting High Court judges
Do not confuse the two.
What should an improved system aim for?
India's judicial appointment debate is often presented as a choice between only two models:
Collegium or executive control.
The real challenge is more nuanced.
An effective system must achieve several goals at once:
- protect judicial independence;
- appoint competent judges;
- fill vacancies quickly;
- improve transparency;
- broaden diversity;
- provide predictable procedures; and
- prevent political interference.
The controversy over Acting Chief Justices shows another requirement: clear institutional rules.
If the Constitution and existing procedure leave uncertainty over whether an Acting Chief Justice should initiate recommendations, the judiciary can reduce future disputes by clarifying the convention.
A predictable rule is better than deciding the same procedural question differently from one High Court to another.
Prelims Quick Revision
| Topic | Key Fact |
|---|---|
| High Court judge appointments | Article 217 |
| Acting Chief Justice of High Court | Article 223 |
| Additional and acting High Court judges | Article 224 |
| Retirement age of High Court judge | 62 years |
| High Court Collegium | Chief Justice + 2 senior-most judges |
| Collegium mentioned in Constitution? | No |
| Second Judges Case | 1993 |
| Third Judges Case | 1998 |
| NJAC struck down | 2015 |
| Formal appointment of HC judges | President of India |
Remember
Article 223 does not itself expressly bar an Acting Chief Justice from recommending judges.
The present debate arises mainly from the relationship between constitutional duties, the MoP and institutional convention.
UPSC/State PCS Relevance
This topic is particularly important for GS Paper II, where it can be linked with:
- appointment of judges,
- Collegium system,
- independence of judiciary,
- separation of powers,
- checks and balances,
- constitutional conventions,
- judicial reforms and
- pendency of cases.
For Prelims, Articles 217, 223 and 224 are particularly important.
Possible UPSC Mains Question
“The debate over whether an Acting Chief Justice can initiate judicial appointments highlights the growing importance of constitutional conventions in the functioning of India's higher judiciary.” Discuss.
A good answer can begin with Articles 217 and 223.
Then explain the High Court Collegium and the Memorandum of Procedure.
The analysis should present both sides:
In favour of allowing recommendations
- Article 223 authorises performance of Chief Justice's duties;
- High Court vacancies cannot remain unfilled;
- long Acting-CJ tenures may otherwise delay appointments.
In favour of restraint
- Acting Chief Justice holds temporary office;
- appointments have long-term institutional consequences;
- permanent Chief Justice should normally shape the court's composition.
The conclusion should call for greater procedural clarity while protecting both judicial independence and timely appointments.
Conclusion
The Rajasthan episode has exposed a grey area in India's judicial appointment system.
The Constitution says that an Acting Chief Justice performs the duties of the Chief Justice. The appointment procedure gives the Chief Justice an important role in recommending judges. Yet convention has often encouraged temporary Chief Justices to exercise restraint in matters with long-term consequences.
There is therefore no useful answer in simply saying “yes” or “no”.
The larger lesson is that a constitutional system works not only through written rules but also through conventions developed over time.
When those conventions become uncertain, institutions need to clarify them.
For India's judiciary, the objective should be clear: appointments must remain independent of political pressure, but the system must also be transparent, predictable and capable of filling vacancies without unnecessary delay.
Sources
Constitution of India — Legislative Department
Read the Constitution of India
Department of Justice, Government of India
Department of Justice
Supreme Court of India — Collegium Resolutions
Supreme Court Collegium Resolutions
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