The Supreme Court Bar Association appears to have gotten itself into a tangle
recently. The entire issue began with a proposal to elevate Supreme Court
lawyers to the position of Judge on the High Courts. But, to fully comprehend
this conflict, we must first look at how High Court justices are now appointed,
and then investigate the issues that have been expressed thus far.
On the 8th of June, the Supreme Court Bar Association released a statement[i] stating
that Chief Justice of India N.V. Ramanna has consented to their representation
in the promotion of top court lawyers to High Court judgeships. According to the
statement, the Hon'ble CJI has agreed to the SCBA's proposal and has asked the
Chief Justices of the High Courts to consider Supreme Court lawyers for
elevation to their respective High Courts.
The SCBA Executive Committee is also
forming a seven-member Search Committee to facilitate the process of elevation
by identifying deserving and meritorious Supreme Court
practitioners. Furthermore, the statement went on to say that, while being
professionally more meritorious than their colleagues at the High Court, the
Supreme Court lawyers lose out on such judgeship opportunities in the High
Apart from the technical issues with this proposal, this final component appears
to have irritated High Court lawyers the most. Several High Court Bar
Associations have taken issue with the SCBA, claiming that Supreme Court lawyers
are more meritorious than those practising in the High courts. Apart from that,
to address the other issues stated by High Court attorneys about this proposal,
we must first understand how Indian High Court Judges are selected.
APPOINTMENT OF HIGH COURT JUDGES
Article 217 of the constitution deals with the appointment and conditions of a
High Court Judge. It gives the President the authority to appoint every High
Court Judge after consulting with the Chief Justice of India, the Governor of
the State, and, if a judge other than the Chief Justice is appointed, the Chief
Justice of the High Court. According to Article 217, subclause (2), a person may
be appointed as a high court judge if they have served as a judicial official or
a High Court lawyer for at least 10 years.
A High Court Collegium now initiates
the process and sends its recommendations to the centre as well as the Supreme
Court Collegium, but the Supreme Court Collegium can only clear names after
receiving proposals from the government based on the candidates' background
checks, according to the memorandum of procedure, which lays out the entire
procedure for appointing judges. The Chief Justice and two of the court's most
senior judges make up the Supreme Court and High Court Collegiums.
are submitted returned to the law ministry for notice once the Supreme Court Collegium clears or accepts the names. The proposal for the appointment of
Supreme Court judges must be begun by the Chief Justice of India, while the
proposal for the appointment of High Court judges must be initiated by the Chief
Justice of the High Court, according to 1993 judgement known as the Second
The Chief Justice of the High Court must also get the opinions
of at least two of the court's most senior justices and incorporate their
opinions into recommendations. That is essentially how the collegium system
works, and it is also how the memorandum of procedure considers when laying out
the whole method.
ISSUES WITH THE PROPOSAL
The SCBA has created a Search committee
to help in the elevation process by
identifying deserving and qualified Supreme Court lawyers. However, the existing
judicial selection procedure does not account for the involvement of a private
body such as the SCBA. Of course, anytime a Supreme Court lawyer is to be
appointed as a High Court Judge, there are usually informal conversations, as
there have been a few cases in the past, such as the appointment of Justice
Ravindra Bhat. However, a private body such as SCBA has no statutory role in the
appointment of judges.
There is also the matter of starting the whole thing. As previously stated, the
Chief Justice of the High Court oversees starting the process of appointing
judges. However, it is unclear whether the committee would choose names of
lawyers for elevation and transmit them to the CJI, who will then convey them to
the High Court Chief Justice, or whether the SCBA will send the names to the
High Court Chief Justice directly.
OBJECTIONS TO THE PROPOSAL
Several lawyer's associations have written to the CJI, to SCBA president Vikas
Singh, raising objections to the proposal. They have criticised it, stating that
it goes against the procedure established by the Constitution, the Supreme
Court, and the Memorandum of Procedure.
The Advocates' Association of Bengaluru, in particular, has made an even more
innovative demand[iii]. Article 124 discusses the appointment of Supreme Court
judges in the same way that Article 217 discusses the appointment of High Court
judges. When discussing the qualifications of a Supreme Court judge, it
specifically states that they can also be someone who has been a High Court
lawyer for at least 10 years.
According to the Advocates' Association of Bengaluru, Article 217 expressly states that members of the bar who are actively
practising in the High Court should be considered for judgeship, but Article 124
specifically states that High Court attorneys should be appointed as Supreme
Court judges. As a result, they are reversing the position and requesting that
the CJI consider elevating attorneys practising in the Karnataka High Court to
the Supreme Court as judges.
All the criticism prompted SCBA president Vikas Singh to issue a clarification
on June 13th, specifically on his statement about Supreme Court lawyers being
more meritorious, in which he stated that the statement was made solely for the
purpose of ensuring that they are considered for elevation by the High Court
collegiums on an egregious basis.
Thus, the proposal by the Supreme Court Bar Association has attracted more
controversy than appreciation by members of the legal fraternity. Hence, only
time will tell what lies ahead.
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