Constitution of India
Article 216: Constitution of High Courts
Part VI — The States (Chapter V — The High Courts in the States)
Article 216
WHAT IT SAYS: Every High Court shall consist of a Chief Justice and such other Judges as the President may from time to time deem it necessary to appoint. ORIGINAL TEXT (before 7th Amendment, 1956): Included a proviso — 'Provided that the Judges so appointed shall at no time exceed in number such maximum as the President may, from time to time, by order fix in relation to that Court.' AMENDMENT HISTORY: 1. Constitution (Seventh Amendment) Act, 1956, Section 11 — Omitted the proviso (w.e.f. 1-11-1956). 2. Reason: The proviso was of little practical significance since the President could change the maximum at any time; also, the new provision for additional/acting judges under Article 224 would have required frequent modifications to the maximum. WHAT IT MEANS: 1. No fixed number of judges is prescribed for any High Court. 2. The President (i.e., the Union Executive) determines the strength of each High Court. 3. This gives complete flexibility to adjust judge-strength based on caseload. 4. Unlike Article 124 (Supreme Court), Parliament plays no role in fixing judge numbers. KEY DOCTRINE: 1. Executive Discretion Doctrine — Fixation of judge-strength is an executive function under Article 216, but subject to an obligation of periodic review. 2. Justiciability of Judge-Strength — The Second Judges Case (1993) held that failure to review judge-strength is justiciable, overruling S.P. Gupta (1981) on this point.
Constitutional Inspiration
SOURCE(S): 1. Government of India Act, 1935 — Section 220(1) Original provision: Every High Court shall consist of a Chief Justice and such other judges as His Majesty may from time to time deem it necessary to appoint, with a proviso capping the maximum number. What India kept: Retained identical structure and wording, replacing 'His Majesty' with 'the President'; proviso later dropped in 1956. INDIA'S SPECIFIC ADAPTATIONS: 1. Replaced Crown's appointment power with the President's — To ensure democratic accountability and republican governance. 2. Removed the proviso fixing maximum judge-strength (7th Amendment, 1956) — To allow flexibility for additional/acting judges under the new Article 224. 3. Unlike Article 124 for the Supreme Court, Article 216 does not involve Parliament in fixing judge numbers — To enable quicker executive response to varying caseloads across different states.
Constituent Assembly Debate
DEBATED ON: 6 June 1949 (CAD Volume VIII) DRAFT ARTICLE: 192A (not in the original Draft Constitution, 1948 — inserted as a new article by the Drafting Committee) KEY SPEAKERS: 1. Dr. B.R. Ambedkar (Chairman, Drafting Committee) — Proposed Draft Article 192A giving the President power to appoint judges and fix maximum strength; defended vesting this discretion solely in the executive. 2. Prof. Shibban Lal Saksena (U.P.) — Objected to giving the President sole discretion; argued the President should consult the Chief Justice of India before deciding judge numbers. MAJOR DISAGREEMENTS: 1. Role of CJI in fixing judge-strength — Prof. Shibban Lal Saksena wanted mandatory consultation with the CJI; Dr. Ambedkar rejected this, stating the President with advice of the Council of Ministers was adequately equipped. FINAL OUTCOME: Dr. Ambedkar's proposal was adopted as moved; the suggestion for CJI consultation in determining judge-strength was rejected. AMBEDKAR'S KEY POSITION: The President, with advice from the Council of Ministers, is adequately equipped to decide the judiciary's composition while maintaining flexibility.
Landmark Judgments
LANDMARK JUDGMENTS: 1. S.P. Gupta v. Union of India (1981) [First Judges Case] — Held that fixation of judge-strength under Article 216 is a purely executive function; mandamus cannot be issued to direct the President to fix a particular strength. However, the President has a constitutional obligation to periodically review judge-strength vis-à-vis pending arrears. 2. Supreme Court Advocates-on-Record Association v. Union of India (1993) [Second Judges Case] — Overruled S.P. Gupta partly; held that failure to perform the duty under Article 216 (reviewing judge-strength) is justiciable, but courts cannot themselves fix judge numbers — they can only direct the executive to perform its constitutional obligation in conformity with CJI's recommendation. 3. In Re: Presidential Reference (1998) [Third Judges Case] — Clarified the collegium system for appointments under Articles 124, 216, 217, and 222; expanded the collegium to CJI plus four senior-most puisne judges for Supreme Court appointments. 4. Jamal Uddin Ahmad v. Abu Saleh Najmuddin (2003) — Referred to Article 216 while examining appointment procedures for High Court Judges. NOTABLE DISSENTS: 1. Justice Pathak & Justice Tulzapurkar in S.P. Gupta (1981) — Dissented on the majority's view of executive primacy; held that the Chief Justice of India's opinion should always be given supremacy over other constitutional functionaries in judicial appointments. SCHOLARS & JURISTS: 1. M.P. Jain (Constitutional Law of India) — Article 216 reproduced the provisions of Section 220(1) of the Government of India Act, 1935, but differs from Article 124 in that it fixes no limit on judge numbers and leaves the matter entirely to the President. 2. D.D. Basu — Observed that Article 216 provides flexibility essential for India's diverse High Courts to cope with varying caseloads across states.