Appointment of Judicial Officers under the Bar quota: Judgement explainer

Transcript:

Rajneesh KV wanted to become a judge. He had been practicing as an advocate in Kerala for over seven years. Under Article 233 of the Constitution, he was eligible to apply for the post of a district judge. In December 2017, while he was awaiting the result of his district judge application, he was selected as a munsif magistrate. In August 2019, his appointment as a district judge finally came through. Deepa, who was a fellow candidate, challenged the legality of Rajneesh’s appointment as a district judge. She argued that Rajneesh was not eligible for the selection under the bar quota because he was no longer a practicing advocate when the call came. He was a judicial officer, a class for which there was a separate stream of promotions to district judgeship. In fighting her case, Deepa also relied on Article 233. Clause 2 specifies that a person not already in the service of the Union or of the State shall only be eligible if he has been for not less than 7 years an advocate or a pleader. Rajneesh read this provision differently.

He contended that he’d already done his seven years as an advocate and that the provision didn’t require him to be in practice at time of appointment. The case went before a single judge of the Kerala High Court which sided with Deepa. The bench relied on Dheeraj Mor vs High Court of Delhi, a 2020 judgment where the Supreme Court had said that a candidate must be an advocate at the time of appointment. On appeal, a two judge bench of the Kerala High Court found that the logic held up. However, it took note of the fact that different states had made their own rules. In All India Judges Association, the Supreme Court had laid down a 50 : 25 : 25 quota formula for district judge appointments. 50% merit based promotion from the lower judiciary, 25% promotion from the lower judiciary based on competitive examination and 25% selection from the bar. Recognizing the variance in local service conditions and practical difficulties, the court allowed states discretion to modify the formula.

Some states did away with the examination, but almost all of them retained the 75:25 split between in service promotion and direct bar recruitment. Keeping this in mind, the Kerala High Court allowed Rajneesh to take the case directly to the Supreme Court. Several others also joined Rajneesh’s plea. A five judge constitution bench heard the case for over four days. Much of the hearing came down to the actual text of Article 233. The petitioner’s council argued that the language pointed two categories of candidates, those already in service and advocates. The respondents which included several high courts defending their rulemaking powers around recruitment, argued the provision imposed two conditions of eligibility of not being in judicial service and having seven years of practice. There were wider concerns that were framing this interpretive battle. State governments have been criticised by advocates for being lax about filling bar quota posts and then diverting the unfilled seats to the judicial promotion stream. During the hearing, Justice Sundresh mentioned the need to ensure quality at the bottom and attract the best legal minds. It was another way of saying that there was an interest in maintaining a healthy mixed carder balance in the district judiciary.

Now petitioner’s lawyers had argued that leaving the bar quota unfulfilled on the ground that the candidate is in service could aggravate an already concerning vacancy issue. Data from the Department of Justice suggest that almost 20% of sanction posts in the district judiciary remain vacant. As we stand today, the National Judicial Data Grid shows that there are 4.7 crore cases pending in our district courts. The Bench reserved its verdict in the case. Our reporter Namrata Banerjee captured the key contentions and tensions in a series of hearing reports. Do check them out on our website. Now let’s hop on to what the Court actually said about the case.

The Supreme Court unanimously held that judicial officers with the combined experience of seven years as an advocate and and in service will be eligible for recruitment as district Judges. Interpreting Article 233 of the Constitution as a complete code, the Bench found no basis for a quota of advocates at the expense of those already in judicial service. It clarified that the provision permitted both advocates and in service candidates to be appointed as district judges and extended the criteria of seven years practice to judicial officers as well. The Court set aside any recruitment rules that conflicted with the judgment. State governments in consultation with the High courts were directed to frame new rules and amend any existing rules within three months. Chief Justice BR Gavai clarified that the judgment will operate prospectively, that is looking ahead going forward. Supporting the Shetty Commission, the Court held that merited serving judges should not be excluded from consideration. Article 233 must be interpreted to promote competition and inclusivity rather than narrow eligibility.

The Court clarified that a separate clause for serving judges is unnecessary as clause 1 of article 233 already allows their inclusion. They rejected the idea that 233 (2) creates an exclusive quota of advocates. The Bench held that while the 75:25 ratio recognised in All India Judges Association vs Union of India preserves balance, it does not create a sort of reservation. Treating the provision as a quota would exclude judicial officers with bar experience violating Articles 14 and 16. The court observed that the object of Article 233 is to ensure that the best talent is drawn into the district judiciary, which cannot be achieved if qualified candidates are excluded. We’ve put together a summary of the judgment and the matrix that breaks down the judgment into a tabular form. Do take a look.

Thank you for watching. I am Gauri Kashyap, and for more such stories from the Supreme Court, visit scobserver.in

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