NEWS surfaced recently in which the Supreme Court Bar Association (SCBA) claimed through a communication sent to its members that the Chief Justice of India (CJI) NV Ramana “has agreed” to a request made by the SCBA to consider elevating Supreme Court lawyers as high court judges.
The SCBA’s communication to its members further revealed that it had constituted a “Search Committee” to facilitate the process of elevation by identifying deserving and meritorious Supreme Court practitioners.
The communication, however, failed to specify any objective criteria that would be followed by the “Search Committee” in picking the names of lawyers for the elevation.
High Court judges are appointed by the President under Article 217 of the Constitution read with Supreme Court’s decision in the Second and Third Judges’ case. In a nutshell, the high court collegium, which comprises the chief justice of the high court and two senior-most judges, recommends a name for a high court judgeship to the Supreme Court collegium. The Supreme Court Collegium, which comprises the CJI and two senior-most judges, takes a final call on the high court collegium’s recommendations.
The Supreme Court Collegium can either approve the recommendation and then transmit the same to the Government of India for giving effect to it, or it can disagree with the high court collegium or defer the proposal.
There are two requirements for being eligible for a high court judgeship: the person concerned must be a citizen of India and have, for at least ten years, been an advocate of a high court or two or more such courts in succession. If the person concerned is from the subordinate judiciary, he must have held a judicial office in the territory of India for at least ten years.
The Memorandum of Procedure (MoP), a document indicating the process of appointment, in consultation with the Chief Justice of India, also provides that if the Chief Minister of a state desires to recommend the name of any person, they should forward the same to the Chief Justice for consideration.
The SCBA’s concern on the non-elevation of the lawyers practicing in the Supreme Court seems genuine but how it seeks to address the issue has no legal foundation.
Firstly, the Supreme Court in the Supreme Court Advocates-on-Record Association and another vs. Union of India (1993) [known as the Second judges’ case] held that the initiation of the proposal for appointment in the case of the Supreme Court must be by the Chief Justice of India, and in the case of a high court by the chief justice of that high court. Thus, it is for the concerned chief justice of the high court to initiate the proposal for the appointment. Besides, the high court chief justice must ascertain the views of the two senior-most judges of that court and incorporate the same in their recommendation.
Secondly, the law laid down in the Judges’ case through which the Collegium system came into existence, is also reflective in the MoP, which nowhere envisages the role of a private entity such as SCBA in the appointment process. It may, however, be noted that there has always been “informal” discussions to appoint a Supreme Court lawyer as a high court judge. For example, several Supreme Court lawyers in the past have been elevated to a high court. Several of them were finally even elevated to Supreme Court. Justice BS Chauhan, Justice AM Khanwilkar and Justice Ravindra Bhat are such examples. Their appointments would not have been possible if the chief justice of a high court was not ready to listen to the informal suggestions of the CJI or a Supreme Court judge.
Thirdly, the SCBA’s communication lacks clarity on whether its search committee will select the names of lawyers for elevation to forward to the CJI who will, in turn, send them to the high court or the high court chief justice directly. It may be noted that the CJI cannot have any formal role whatsoever until the names from the high court collegium have been received. The Supreme Court Collegium headed by the CJI acts as reviewing authority of the proposal high court sends. It would be an aberration if the CJI first sends names to the high court, and after the receipt of the recommendations from the high court, the CJI again sits in the Collegium to review them.
Further, if the SCBA decides to send the names directly to the high court for consideration, one would wonder on what basis the chief justice of the high court would form an opinion when the recommended lawyer who practises in the Supreme Court, has not been observed arguing in the concerned high court.
The SCBA’s proposal, if accepted by the Supreme Court Collegium, would give rise to the demand of the high court bar associations to recommend names for the judgeship in the Supreme Court which in –turn may end up politicising the whole process.
As the law explained above indicates, the SCBA’s proposal is not as simple as it may sound. It may even interfere in the prerogative of the chief justice of the high court who under the law is alone empowered to recommend names in consultation with their two colleagues.
On what basis the high court collegium picks up name is again a different issue, which leads to a larger issue of the non-transparent process appointment of judges.
There have been calls from different quarters to make the process transparent, inclusive, and objective.
The SCBA’s concerns can best be addressed by suitably amending the MoP to provide and authorise a source of recommendation for names of Supreme Court lawyers for their elevation in a high court. The office of the Attorney General, which is a constitutional office unlike the SCBA, could also be in the loop for this purpose.
It may be noted that any changes to the MoP, under the law, will require the unanimous view of the Collegium comprising CJI and four senior-most puisne judges of the Supreme Court.
The article was originally published in The Leaflet.
(Paras Nath Singh is a Delhi-based lawyer. The views expressed are personal.)