New Delhi: The Allahabad high court is facing opposition from the court’s bar associations over the elevation of “outside” lawyers to the high court as judges. This comes at a time when the Allahabad high court is functioning at 63 per cent of its strength for judges and is battling a backlog of over 1 million cases, according to National Judicial Data Grid figures.
Even before the collegium meeting to elect new judges earlier this month, the High Court Bar Association, Allahabad and lawyers had expressed their concerns over the potential recommendation for elevation of a former Supreme Court (SC) judge’s son, ThePrint has learnt. The opposition was later extended to the elevation of all lawyers from the state who are currently practicing in the Supreme Court, said sources in the bar association. The former SC judge and his son are not from the state.
The Allahabad high court collegium currently comprises the chief justice of the court, Justice Rajesh Bindal, and two senior most puisne judges — Justices Pritinker Diwaker and Manoj Misra. Two of the three pushed back on the recommendation of the former SC judge’s son, leading to a deadlock that delayed the recommendations for months, said the sources.
While the retired SC judge was named by the union government as the chairperson of a prominent central tribunal hours after his retirement, his son is a practicing lawyer.
Sources in the Allahabad high court told ThePrint that the primary reason for the pushback was because the former judge’s son doesn’t ordinarily practice in that court, and is a government lawyer in another state. Another reason, according to the sources, was that he is 43 years old — two years short of the usual qualifying age of 45 years for being considered for elevation to the position of a HC judge.
Having gotten wind of his possible recommendation, lawyers practicing at the high court registered their disapproval of the potential move ahead of this month’s collegium meeting. In a resolution passed on 23 August by the High Court Bar Association, Allahabad, lawyers of the high court had decided to abstain from work for a day on 24 August. This was extended to two more days, or till 26 August.
ThePrint has a copy of the resolution.
While listing of cases before the court was one of the major reasons for this abstention, one of the other reasons mentioned in the resolution was appointment of judges. Highlighting the vacancies in the high court, the resolution requested the chief justice of the high court, the Chief Justice of India and the central government to appoint judges to the high court without delay.
However, the resolution added, “This appointment should be made only from the advocates of the Allahabad High Court and the Lucknow Bench. If lawyers from outside are appointed in the Allahabad High Court in any manner, the High Court Bar Association, Allahabad will strongly oppose it.”
An office bearer of the bar association, speaking on the condition of anonymity, confirmed the association’s concern about the possibility of appointment of the former Supreme Court judge’s son as a judge at the high court.
Sources in the Allahabad HC said the collegium finally had a meeting earlier this month and agreed on the names of sixteen lawyers for elevation to the position of judges. The former judge’s son did not make the cut, added the sources. However, at least four of these lawyers primarily practice in the Supreme Court even though they are from UP, evoking reactions from the bar associations.
According to Article 217 of the Constitution, one of the qualifications for lawyers to be appointed as judges of a high court is that they should have been “an advocate of a high court or of two or more such courts in succession” for at least ten years.
Usually, lawyers practicing in the same high court, and who high court judges have seen arguing personally, are recommended to be elevated to as judges.
However, appointment of lawyers from other high courts and from the Supreme Court has always remained a point of contention between collegiums and high court lawyers.
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‘Lawyers will be demoralised’
Meanwhile, Rakesh Chaudhary, president of the Oudh Bar Association of the Lucknow bench of the Allahabad high court wrote to the Chief Justice of India U.U. Lalit on 9 September, requesting him to not propose elevation of lawyers practicing in the Supreme Court as Allahabad high court judges.
ThePrint has a copy of the letter.
“There are several advocates at High Court, who have given their entire life to the profession and truly deserves to be elevated as Judge of the Supreme Court,” reads the letter, asserting that “considering names of those Advocates, who have never practiced before the High Court will not only demoralize the hard-working advocate but will also raise a doubt on the fairness of the system.”
The letter, therefore, requests the CJI to “not give any assent or consent for elevation of Advocate practicing at Supreme Court to the office of High Court Judge”.
On 15 September, the Oudh Bar Association passed another resolution, noting that lawyers not practicing in the high court have been recommended despite the objections raised by the bar associations. It, therefore, decided to abstain from work for two days on 16 and 17 September. The resolution asserted that the practice of recommending lawyers who don’t practice in the high court “lacks objective assessment of an individual and is an arbitrary exercise of power.”
“This is a call to save the institution, and for the public cause,” the resolution added. Following this, the Allahabad High Court Bar Association also passed a resolution to abstain from work on 17 September.
ThePrint has a copy of both resolutions.
As on 1 September, 2022, the Allahabad high court had a total of 101 judges, as against an approved strength of 160 judges. According to the Memorandum of Procedure for appointment of judges to the high court, the proposal for appointment needs to be initiated by the chief justice of the high court, who is supposed to consult two of his senior-most colleagues on the bench regarding the suitability of the names proposed. The collegium sends its recommendations regarding appointment of judges to the chief minister, the Centre, as well as the Chief Justice of India.
The CJI then, in consultation with the two senior-most Judges of the Supreme Court, form his opinion in regard to a person to be recommended for appointment to the high court. The SC collegium can clear names only after it receives proposals from the government following the candidates’ background checks.
According to sources in the legal fraternity, there have been instances where lawyers who are exclusively practicing in the Supreme Court, but are originally from the state in which the high court is situated, are recommended for elevation to the position of a High Court judge.
In this case, the four Supreme Court lawyers recommended are also from the state of UP, but have restricted their practice to the top court. One of them is the son of a former Allahabad high court judge.
Explaining the reason behind the outrage against the recommendations, a lawyer from the Oudh Bar Association asked, “The issue here isn’t who is or who is not from the state. The issue is that they have never practiced before the high court. How can the judges in the collegium recommend someone for elevation without ever seeing them argue?”
(Edited by Poulomi Banerjee)
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