Recruitment of judicial officers as District Judges under bar quota | Day 3: Courts must respect statutory recruitment rules of judicial officers argue respondents

Naidu: Advocates need not have a continuous practice of seven years

Naidu opened his submissions by saying that he represented thousands of talented young lawyers. CJI Gavai interjected lightly, “Don’t give a speech.” Naidu responded that he was merely presenting the facts. Naidu argued that candidates, who could earn substantial incomes, still volunteer to join the judiciary. CJI Gavai remarked that some of them eventually resign too.

Naidu continued, stating that candidates already being a part of the service should not be a factor to overlook their capability for high appointments, as their experience and skills remain valuable. He pointed out that gold medalists often enter junior civil services, showing that top talent sometimes takes varied career paths.

Turning to Article 233(2), Naidu urged that the seven-year continuity requirement under Article 233(2) be interpreted flexibly, ensuring that qualified candidates who have non-linear career paths are not unfairly excluded from judicial appointments. He explained that a candidate may have practiced in the High Court for five years, then taken a job elsewhere for several years, and later returned to practice for additional years. Taken together, the total experience could meet the seven-year requirement. Such candidates should not be disqualified based on gaps in continuity, he argued. He submitted that the focus should be on passion and professional qualifications, as various factors compel lawyers to pursue different options before returning to practice.

Naidu provided the examples of Justice Krishna Iyer who had been a minister and Chief Justice John Marshall, who could not complete his legal training uninterrupted. 

Sankaranarayanan: Period of advocacy can be combined with judicial service

Sankaranarayanan addressed how periods spent as an advocate and as a judge should be counted for eligibility under Article 233. He referred to Articles 124(2) and 217(2)(a) which are related to the establishment of the Supreme Court and the appointment to the High Courts respectively. He explained that these provisions include explicit explanations about reckoning judicial service, particularly counting post-judicial advocacy.

Previously counsel had argued that Article 233 lacks such explanations, suggesting that prior advocacy should not be counted. Sankaranarayanan countered this, submitting that the absence of an explanation in Article 233 allows periods of advocacy to be combined with judicial service. He stated, “The period when I was an advocate obviously must be added to the period when I was a judge; earlier period has to be added to the judicial period, because the explanation is absent.”

He contrasted this with Articles 124 and 217, where the explanations were necessary to limit counting of advocacy experience. Article 233 had no such restriction, he claimed. Therefore, advocates with prior judicial experience or combined advocacy, and judicial service, he submitted, should be fully eligible under the bar quota.

Guruswamy: A harmonised interpretation of Articles 233, 124, and 217

Guruswamy claimed that the Constitution treats bar and judicial experience as equivalents under Article 124 and 217. She argued that Article 233, read with Articles 124 and 217 form a cohesive framework and must be interpreted harmoniously. 

Accordingly, she submitted that the candidates with a bar experience and a judicial experience are the “same stream” that form “two rivers flowing into the ocean”. She submitted that a rigid separation between judicial streams in Article 233 would fragment the judiciary, contrary to the Constitution’s vision.

Singh: Two Distinct Sources Under Article 233

Singh submitted that the interpretation of Article 233 has been consistent for over six decades. He noted that there are two distinct sources of recruitment: one by promotion and the other by direct recruitment from practising members of the Bar.

Singh argued that Dheeraj Mor v High Court of Delhi (2020) simply reiterated the rule that was established in past precedents and did not create any new principle of law.. He stressed that the courts should not depart from long-standing interpretations unless there is “some startling error, or something conducive to public mischief”.

He clarified that while Article 233 sets out the sources of recruitment, it does not prescribe the manner of their operation. The methodology is left to the executive in consultation with the High Courts, through statutory rules framed under Article 309. Singh noted that this framework has “stood the test of time,” and warned against reopening foundational provisions merely because the original legislative design may have had weak roots.

Singh further submitted “nobody can say that a directly elevated judge who’s come from the Bar has less knowledge or experience”. He argued that members of the Bar contribute equally to judicial work, even in comparison to officers with years of service as district judges.

Addressing the quota issue, Singh clarified that Article 233 does not prescribe percentages for promotion or direct recruitment. Quotas, such as the 25% posts reserved for direct recruits in some states, are a product of statutory rules, not the Constitution. He explained that these rules allow flexibility: if insufficient candidates are available under one stream, vacancies can be absorbed by the other, ensuring that the system remains efficient and enriched by talent from both sources.

Singh stressed that unless statutory recruitment rules are found to be ultra vires, courts should respect the mechanism developed by High Courts and the executive. Reiterating the textual clarity of Article 233, he concluded that it recognises “two sources of appointment,” and the Court should not disturb appointments made under this framework. CJI Gavai noted that the Bench would not interfere with any appointments already made.

Gupta: Clear Separation Between In-Service Officers and Advocates

Gupta explained that Articles 233(1) and 233(2) both deal with appointments to the judiciary, but in different ways. He said that 233(1) covers appointments and promotions of officers already in service, while 233(2) is specifically about direct recruitment from practising advocates outside the service. As he put it, “233(1) uses the expression consultation with the High Court; 233(2) speaks of recommended by the High Court.”

Gupta stressed that this distinction matters because 233(2) does not refer to in-service officers at all. He argued that any opposite interpretation would be inconsistent with the text, since “ [Article] 233(2) is making no reference to allowing those who are in service to be appointed.”

He pointed out that Article 233(2) sets qualifications for advocates seeking direct recruitment, whereas there are no separate qualifications prescribed for officers already in service. Gupta explained that it would be illogical for one group to face a strict qualification requirement while the other group does not.

On the issue of combining experience, Gupta submitted that the period spent as an advocate and the period served as a judge cannot be added together to meet the eligibility criteria.

The Bench will continue hearing the matter tomorrow.