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Supreme Court Lawyers As High Court Judges

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 Court.

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.

The papers 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 Judges Case. [ii]

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.

End-Notes:
  1. https://scbaindia.org/PresidentNotices/31.pdf
  2. https://main.sci.gov.in/judgment/judis/29918.pdf
  3. https://images.assettype.com/barandbench/2021-06/3bc6d0d0-5a03-41dd-bfd5-48429ef7232a/AAB_letter.pdf

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