Constitution of India
Article 223: Appointment of acting Chief Justice
Part VI — The States (Chapter V — The High Courts in the States)
Article 223 (no sub-divisions — single article)
WHAT IT SAYS: When the office of Chief Justice of a High Court is vacant, or when such Chief Justice is unable to perform duties by reason of absence or otherwise, the President may appoint one of the other Judges of that Court to perform the duties of the office. WHAT IT MEANS: 1. Covers TWO situations — (a) vacancy in the office; (b) inability due to absence or other cause. 2. Appointment power vests solely in the President of India. 3. Only a sitting Judge of the same High Court may be appointed. 4. Appointment is temporary — lasts only until permanent Chief Justice resumes or is appointed. 5. Acting Chief Justice exercises ALL powers and responsibilities of the Chief Justice. KEY DOCTRINE: 1. Doctrine of Judicial Continuity — No High Court shall remain without a functional head, even temporarily. 2. Convention of Seniority — By practice, the senior-most puisne Judge is generally appointed, though the Constitution does not mandate this. 3. Post-Second Judges Case (1993), the Collegium system applies — CJI's recommendation is practically binding on the President for such appointments.
Constitutional Inspiration
SOURCE(S): 1. Government of India Act, 1935 — Section 222(1) Original provision: If the office of Chief Justice of a High Court becomes vacant or the Chief Justice is unable to perform duties, those duties shall be performed by such one of the other Judges as the Governor-General appoints for the purpose. What India kept: Identical structure and language — substituted 'President' for 'Governor-General'. 2. Article 126 of the Indian Constitution (parallel provision for Supreme Court) Parallel provision: Acting CJI appointed by the President when CJI office is vacant or CJI unable to perform duties. What India kept: Mirrored the same mechanism at both Supreme Court and High Court levels. INDIA'S SPECIFIC ADAPTATIONS: 1. Removed the Governor-General's discretionary power — replaced with President acting on aid and advice of Council of Ministers (and post-1993, on recommendation of CJI/Collegium). 2. Omitted the time-bound language of Section 222(1) which stated 'until some person appointed by His Majesty to the vacant office has entered on the duties thereof' — India's version is open-ended. 3. Deleted original Draft Article 198(2) which provided for appointment of temporary/acting judges for ordinary vacancies — Ambedkar limited Article 223 to ONLY the Chief Justice vacancy/absence, separating other temporary appointments to Article 224.
Constituent Assembly Debate
DEBATED ON: 7 June 1949 (CAD Volume VIII) Draft Article Number: 198 KEY SPEAKERS: 1. Dr. B.R. Ambedkar (Chairman, Drafting Committee) — Moved an amendment to delete clause (2) of Draft Article 198, limiting the article solely to appointment of an Acting Chief Justice. 2. T.T. Krishnamachari (Madras) — Noted that his amendment (No. 2650) was already covered by Dr. Ambedkar's amendment deleting clause (2). 3. Dr. P.K. Sen — Chose not to move his amendment to the article. MAJOR DISAGREEMENTS: 1. Draft Article 198(2) — Originally allowed the President to appoint temporary/acting judges for ANY vacancy in a High Court. Judges strongly criticised this. The Drafting Committee and the Special Committee on Judiciary recommended discontinuing the system of temporary judges and instead increasing permanent judge strength. 2. Ambedkar's amendment deleted clause (2) entirely, restricting the article to Acting Chief Justice only. FINAL OUTCOME: Dr. Ambedkar's substituted Article 198 (retaining only clause (1) with a modified heading) was adopted without debate. Clause (2) on temporary judges was removed and provisions for additional/acting judges were separately dealt with under Article 224. AMBEDKAR'S KEY QUOTE: No direct quote recorded for this specific article — the amendment was adopted without debate after Ambedkar moved it.
Landmark Judgments
LANDMARK JUDGMENTS: 1. Supreme Court Advocates-on-Record Association v. Union of India (1993) [Second Judges Case] — Held that 'consultation' with CJI means 'concurrence'; CJI's recommendation (formed collegially) is binding on the President for all judicial appointments including Acting Chief Justices under Article 223. 2. In Re Presidential Reference (1998) [Third Judges Case] — Expanded the Collegium to CJI + 4 senior-most SC Judges; for High Court appointments, CJI must also consult the Chief Justices of the two concerned High Courts. This framework governs Article 223 appointments in practice. 3. Supreme Court Advocates-on-Record Association v. Union of India (2015) [Fourth Judges Case / NJAC Case] — Struck down the 99th Amendment and NJAC Act; reaffirmed that judicial primacy in appointments (including acting appointments under Article 223) is part of the basic structure of the Constitution. 4. K. Venkatasubbaraju v. Union of India — Held that the appointment of an Acting Chief Justice under Article 223 is a matter for the President and can be made even during the course of the same day within a few hours of a vacancy arising. 5. Ashok Tanwar v. State of H.P. — Dealt with the nature and scope of appointment of a temporary Chief Justice under Article 223. NOTABLE DISSENTS: 1. Justice J. Chelameswar in NJAC Case (2015) — Dissented in favour of NJAC, calling the Collegium system 'a euphemism for nepotism' with opaque proceedings; argued NJAC could check 'unwholesome trade-offs' in appointments. SCHOLARS & JURISTS: 1. D.D. Basu — Article 223 ensures judicial continuity; the provision was borrowed almost verbatim from Section 222(1) of the Government of India Act, 1935, substituting 'President' for 'Governor-General'. 2. M.P. Jain — Article 223 is a safeguard provision ensuring no High Court remains headless; by convention, the senior-most puisne Judge is appointed, though the Constitution does not expressly mandate seniority.