Do'nt tinker with the present policy of appointment of the Chief Justice of a High Court from outside the State

The present policy of appointing the Chief Justice of a High Court from outside the state is the part and parcel of the policy to have one-third of the puisne judges of a High Court from outside a state. It has come in place after a very serious and prolonged deliberations at very various fora viz. the Constituent Assembly, State Reorganization Commission, 14 Report of Ist Law Commission of India (LCI) headed by the then Attorney-General of India, Sh. M.C. Setalvad, Administrative Reform Commission and the 80th Report of the 8th LCI headed by the eminent Mr.justice H.R. Khanna. The present policy also finds approval from the decisions of the Supreme Court of the India [S.P. Gupta Vs UOl , AIR 1982 SC 149 (1st Judges case) and Supreme Court Advocates on Record Association V s UOl, AIR 1994 SC 268 (11nd Judges case)]. The Constituent Assembly debates indicate that the High Court Judges were intended to constitute an All India Cadre.
The most common grouse against the present policy is that chief justice from outside is not familiar with the local Bar, traditions, language and the practices and rules of the new High Court, and the judges of the subordinate judiciary. The Supreme Court in the case of S.C. Advocate on record Association v. Union of India adverted to this and opined that:
“It may be desirable to transfer in advance the senior-most Judge due for appointment as Chief Justice to the High Court where he is likely to be appointed Chief Justice, to enable him to take over as Chief Justice as soon as the vacancy arises and, in the meantime, acquaint himself with the new High Court. This would ensure a smooth transition without any gap in filling the office of Chief Justice”. (AIR 1994 SC 268 at P. 440)
The recent transfer of Justice Ranjan Gogoi from Gauhati High Court to the Punjab and Haryana High Court is in conformity with the said opinion of the Apex Court and needs to be replicated invariably in every case.
Moreover, while denouncing the present policy of transfer, we should not lose sight of the rampant scourge of the “uncle judges” that is sullying the hallowed edifice of judiciary and creating fatal cleavages in its image of non-partisanship.
However, the new Chief Justice should be given a long enough stint to enable him to find feet in the new High Court. It is also imperative that Constitution amendment Bill, 2010 introduced by the government in the Lok Sabha in the last monsoon session to raise the retirement age of High Court Judges from 62 to 65 be made into law forthwith.
POST SCRIPT:-
Reportedly, in a departure from two-decade-old practice, the SC collegium has recommended the appointment of Andhra High Court Chief Justice Nissar Ahmed Kakru as the Chief Justice of the high court of J& K, which is his home state. The SC collegium is understand to have decided to send the present Chief Justice of the High Court of the J&K High Court, Aftab Hussain Saikia, to the Gauhati High Court as its Chief Justice in his home state of Assam, replacing Chief Justice Madan Lokur, who is being transferred to the Andhra High Court. (As reported in Hindustan Times, New Delhi, Sept 15, 2010, P. 8)