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‘Derogatory, humiliating’ — HC lawyer bodies oppose plan to elevate SC lawyers as HC judges

On 8 June, Supreme Court Bar Association claimed the CJI had agreed to elevate SC lawyers as HC judges. But high court lawyers' associations have asked the CJI to reject proposal.

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New Delhi: The Supreme Court Bar Association’s proposal to consider the elevation of SC lawyers as high court judges has resulted in widespread opposition from various lawyers’ associations across the country.

On 8 June, SCBA president Vikas Singh had issued a communication claiming that the Chief Justice of India N.V. Ramana has agreed to a representation by the association on the elevation of top court lawyers to high court judgeship.

According to the communication, SC lawyers are rarely considered for elevation by high court collegiums and “while being professionally more meritorious than their colleagues at the High Court, (they) lose the opportunity for being considered”.

The association further noted that CJI Ramana has “requested the Chief Justices of the High Courts to consider lawyers practicing in the Supreme Court for elevation to their High Courts”.

The communication also stated that the executive committee of the SCBA is constituting a seven-member search committee “to facilitate the process of elevation by identifying deserving and meritorious Supreme Court practitioners”.

However, at least six lawyer associations from across the country have written to the CJI and SCBA, demanding the withdrawal of the proposal.

According to the associations, high court judges should be appointed from members of the HC bar and they also took offence at the SCBA stating that SC lawyers are “more meritorious” than the lawyers that practiced in the high courts.

Responding to the objections, Singh issued a clarification Sunday and said that his statement that SC lawyers were more “meritorious” was “for the limited purpose of ensuring their consideration for elevation by the High Court collegiums on equal footing basis and there was no intention whatsoever to cast any aspersion on the lawyers practicing in different High Courts”.

There has been an acute shortage of judges across all 25 high courts in the country. As of 1 June, there are 430 vacancies as against a sanctioned strength of 1,080 HC judges.

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How lawyers are elevated to HC judgeship

Article 217 of the Constitution empowers the President to appoint every high court judge, after “consultation” with the Chief Justice of India, the Governor of the State and the chief justice of the high court.

However, the Supreme Court has, through what are known as the “judges’ cases”,  interpreted the word “consultation” to mean “concurrence”. This provides an upper hand to the judiciary in the process, leading to a procedure where if the collegium reiterates a recommendation, the government is bound by it.

Article 217(2) states that among other things, a person may be appointed as a high court judge if he has been a judicial officer for at least 10 years or if he has been a high court lawyer for at least 10 years.

And according to the Memorandum of Procedure, a high court collegium sends its recommendation regarding appointment of judges to the central government as well as the Supreme Court collegium.

The SC collegium can clear names only after it receives proposals from the government following the candidates’ background checks.

The SC and the high court collegiums comprise of the chief justice along with two senior-most judges of the court. Once the top court collegium also approves the names, the files are sent back to the law ministry for their notification.

There haven’t been many precedents of Supreme Court lawyers being appointed as HC judges.

However, as recently as June 2019, the Orissa High Court bar association had resolved to boycott the court of collegium members.

This was after the HC collegium cleared the name of Supreme Court lawyers who were not regular practitioners at the high court for judgeship, while not clearing the names of other candidates.

The strike was called off after the high court issued contempt notice to the association.

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‘Consider HC lawyers for SC judgeship’

After the SCBA communication on 8 June, several lawyers’ associations across the country registered their protest against the proposal.

The All India Lawyers’ Union (AILU) addressed a letter to the CJI on 13 June, citing Article 217 of the Constitution.

Such a move, it said “would lead to substitution of the opinion of the High Court Collegium by that of the Supreme Court Collegium, in violation of Article 217 of the Constitution and Constitution Benches decisions of the Honourable Supreme Court of India”.

Another letter to the CJI, written by the Advocates’ Association in Bengaluru, on 10 June also referred to Article 217 and asserted that “the primary consideration for appointment of members of the Bar, directly as Judges of the High Court, is to be considered from amongst the members of the Bar who are actively practicing in the High Court”.

The letter further pointed out that Article 124(3) of the Constitution talks about appointment of HC lawyers as Supreme Court judges, and demanded that the CJI should also consider elevation of lawyers practicing in the Karnataka high court as Supreme Court judges.

The Bar Association of Calcutta High Court, meanwhile, took objection to the SCBA letter and said that such a move “interferes with the independence and purity of the selection process” and that it will be “against Constitutional norms”.

In a separate letter addressed to SCBA president Vikas Singh, the association also took objection to top court advocates being pitched as more “competent/professionally more meritorious than the lawyers practicing in various High Courts”.

It has requested Singh to withdraw the letter, claiming that it “puts all the lawyers practicing in various High Courts in ridicule and is derogatory to the larger sections of the lawyer community”.

A day later, on 11 June, the Delhi HC bar association also wrote to the CJI, taking objection to the reasons cited by the SCBA for making the proposal.

According to the association, claiming that Supreme Court lawyers are more “meritorious” is “not only preposterous but in fact, humiliates lawyers practising before other Hon’ble Courts throughout the Country.”

It alleged that the move will “lead to disgruntlement and demoralization of a large section of the Bar”.

Besides this, the Andhra Pradesh High Court Advocates’ Association and Rajasthan High Court Advocates’ Association also wrote letters to the SCBA President and the CJI, respectively.

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