From Bar to Bench

Rejanish K.V. wanted to become a judge. He had been practising as an advocate in Kerala for over seven years. As per Article 233 of the Constitution, he was eligible to apply for the post of District Judge. In December 2017, while he was awaiting the result of his District Judge application, he was selected as a Munsiff-Magistrate. In August 2019, his appointment as District Judge finally came through.

Deepa, a fellow candidate, challenged the legality of Rejanish’s appointment. She argued that Rejanish was not eligible for selection under the Bar quota because he was no longer a practising advocate when the call came; he was a judicial officer, a class for which there was a separate stream for promotions to district judge-ship.

Deepa relied on Article 233 as well. 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 seven years an advocate or a pleader.” Rejanish read this provision differently: he contended that he’d already done his seven years as his advocate, and that the provision didn’t require him to be in practice at the time of appointment. 

A single–judge Bench of the Kerala High Court sided with Deepa while placing reliance on Dheeraj Mor v High Court of Delhi (2020), where the Supreme Court had said that the candidate must be an advocate at the time of appointment. On appeal, a two-judge Bench 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 (2002), the Supreme Court had laid down a 50-25-25 quota formula for District Judge appointments—50 percent merit-based promotion from the lower judiciary, 25 percent promotion from the lower judiciary based on a competitive examination, and 25 percent selection from the Bar. Recognising the variance in local service conditions and practical difficulties, the Court granted 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 Rejanish to take the case to the Supreme Court. Several others in Rejanish’s situation also joined his plea.

A five-judge Constitution Bench heard the matter over four days. 

Much of the hearing came down to the text of Article 233. The petitioners’ counsel argued that the language pointed to two categories of candidates—those already in service and advocates. The respondents, which included several High Courts defending their rule-making powers around recruitment, argued the provision imposed two conditions of eligibility—of not being in judicial service and having seven years of practice. 

There are wider concerns 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-cadre balance in the district judiciary. 

Further, petitioners’ lawyers pointed out 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 suggests that almost 20 percent of sanctioned posts in the district judiciary remain vacant. As of 26 September, the National Judicial Data Grid shows that there are almost 4.7 crore cases pending in district courts.

On Thursday, the Bench reserved verdict in the matter. Our reporter Namrata Banerjee has captured the key contentions and tensions in a series of hearing reports. The judgement will likely be delivered before CJI Gavai’s retirement on 23 November. As ever, we’ll be here to break it down for you.

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