BPSC 69th CCE Prelims General Studies · Question 106 of 144

Correct — A, The President. Article 216, headed "Constitution of High Courts", is a single sentence: "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." Three phrases in it decide the question. "Such other Judges" leaves the number open — the Constitution fixes no figure for any High Court. "From time to time" means the figure can be revised whenever caseload demands, without amending anything. And "as the President may … deem it necessary" names the authority: no Act of Parliament, no resolution, no concurrence of the State is required. Because the President acts on the aid and advice of the Council of Ministers under Article 74(1), the file in practice moves through the Department of Justice in the Ministry of Law and Justice; but the office in which the Constitution vests the power, and the one this question asks for, is the President. Now read the Supreme Court provision alongside it, because the framers deliberately did the opposite there. Article 124(1) says the Supreme Court shall consist of a Chief Justice of India "and, until Parliament by law prescribes a larger number, of not more than seven other Judges" — a starting figure written into the Constitution and the power to raise it handed to Parliament by statute. Parliament has used it repeatedly, most recently by the Supreme Court (Number of Judges) Amendment Act, 2019 (37 of 2019), which raised the number to thirty-three other Judges with effect from 9 August 2019, a sanctioned strength of 34 including the Chief Justice. No equivalent Act exists for any High Court, because Article 216 asks for none. Article 216 did originally carry a proviso; it was omitted by the Constitution (Seventh Amendment) Act, 1956, s. 11, with effect from 1 November 1956, leaving the bare sentence that stands today.

• (b)The Chief Minister of the State — The State executive has no say in how large its High Court is. The Governor does enter the picture, but only on individual appointments — Article 217(1) requires the Governor of the State to be consulted before a Judge of that High Court is appointed — and since the Governor acts on ministerial advice, a candidate can slide from "the State is consulted" to "the Chief Minister decides". Article 217 gives the State a voice on who is appointed; Article 216 gives it none on how many.
• (c)The Prime Minister — The Prime Minister is not named anywhere in Chapter V of Part VI, which governs the High Courts. The tempting route is Article 74(1) — the President acts on the advice of a Council of Ministers headed by the Prime Minister — but that is true of virtually every presidential function, and if it made the Prime Minister the answer it would do so for the appointment of Governors, Judges, Ambassadors and everything else. Exams ask for the office in which the Constitution vests the power.
• (d)The Parliament — The strongest distractor, and it is correct about the wrong court. Parliament fixes the number of Supreme Court Judges under Article 124(1), through the Supreme Court (Number of Judges) Act, 1956 as amended in 2019. Parliament also holds real powers over High Courts — Article 231 lets it establish a common High Court for two or more States, and Article 230 lets it extend or exclude a High Court's jurisdiction over a Union territory. Judge strength is simply not among them.

Chapter V of Part VI, Articles 214 to 231, is the High Court chapter, and it distributes power among three authorities in a very deliberate way. Article 214 declares "There shall be a High Court for each State"; Article 231 then permits Parliament to establish a common High Court for two or more States, which is why the number of High Courts has never matched the number of States. Article 216 gives the President the composition power — a Chief Justice plus as many other Judges as he deems necessary. Article 217(1) gives him the appointment power, by warrant under his hand and seal, with the Governor of the State consulted; the printed text still carries the National Judicial Appointments Commission wording inserted by the Constitution (Ninety-ninth Amendment) Act, 2014, but the Supreme Court struck that amendment down on 16 October 2015, so the collegium consultation revived. Article 224 lets the President appoint additional Judges where there is "any temporary increase in the business of a High Court or … arrears of work", and acting Judges; Article 224A lets a former Judge be requested to sit, with the previous consent of the President.

The reflex that ruins this question is a half-remembered rule: "Parliament fixes the number of judges." That is true — of the Supreme Court. The discriminating fact is a single textual difference you can carry in one line: Article 124(1) contains the words "until Parliament by law prescribes a larger number", and Article 216 contains no equivalent. Wherever the Constitution wants a number settled by statute it says so expressly; where it stays silent, the power sits with the authority that appoints. There is also a practical logic worth knowing, because it makes the rule stick. There is one Supreme Court, so a periodic Act of Parliament is manageable. High Courts are many, they differ enormously in caseload, and their arrears move year to year — requiring a statute every time one of them needed two more Judges would have been unworkable. Article 224's additional-Judge mechanism, triggered by "temporary increase in the business" or "arrears of work", is built on exactly the same executive flexibility that Article 216 assumes.

• Article 216 in full: "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."
• Article 124(1) by contrast: the Supreme Court consists of the Chief Justice of India "and, until Parliament by law prescribes a larger number, of not more than seven other Judges" — raised to thirty-three other Judges, a sanctioned strength of 34, by the Supreme Court (Number of Judges) Amendment Act, 2019 (37 of 2019), w.e.f. 9 August 2019
• The proviso originally attached to Article 216 was omitted by the Constitution (Seventh Amendment) Act, 1956, s. 11, w.e.f. 1 November 1956
• Article 217(1): a High Court Judge is appointed by the President by warrant under his hand and seal, with the Governor of the State consulted, and holds office until 62 — raised from 60 by the Constitution (Fifteenth Amendment) Act, 1963, w.e.f. 5 October 1963
• Article 224 empowers the President to appoint additional Judges for a temporary increase in business or arrears, and acting Judges; Article 224A allows a former Judge of that or another High Court to be requested to sit, with the previous consent of the President
• Parliament's powers over High Courts lie elsewhere: Article 231 — "Parliament may by law establish a common High Court for two or more States or for two or more States and a Union territory"

• Carrying over the Supreme Court rule — Parliament fixes that number under Article 124(1), but Article 216 contains no such clause for High Courts
• Assuming the Governor or Chief Minister has a say in strength because Article 217 requires the Governor to be consulted on individual appointments
• Answering "the Prime Minister" via Article 74(1) — the advice route is common to all presidential functions and never changes which office the power is vested in

BPSC asks authority-allocation flat: "who determines X?", with the President, Parliament, the Prime Minister and a State functionary as the four options, and it reuses the shape across bodies — the 71st CCE ran the identical question for the qualifications of Finance Commission members. UPSC prefers the mirror image or a statement trap: in 2014 it asked who can increase the number of Supreme Court Judges, and in 2013 it buried "High Court Judges are appointed by the Governor" inside a four-statement single-correct item.

• practice — not a real PYQ

  The number of Judges of the Supreme Court of India is fixed by which of the following?

  • (a)The President by warrant
  • (b)Parliament by law
  • (c)The Chief Justice of India
  • (d)The Supreme Court Collegium

  Answer(b) Parliament by law — Article 124(1) allows a larger number "until Parliament by law prescribes" it; the sanctioned strength is 34 including the Chief Justice since the 2019 amendment.

• practice — not a real PYQ

  Under which Article of the Constitution may the President appoint additional Judges to a High Court on account of a temporary increase in its business or arrears of work?

  • (a)Article 217
  • (b)Article 222
  • (c)Article 224
  • (d)Article 231

  Answer(c) Article 224 — Article 217 covers appointment and conditions of office, Article 222 transfer of a Judge, and Article 231 a common High Court for two or more States.