Chief Justice of India N.V. Ramana
A union of lawyers has urged Chief Justice of India N.V. Ramana to reject a plea to elevate Supreme Court advocates as judges of high courts, contending that it will undermine the independence of the judiciary and the transparency of the appointment process.
“We are afraid that such a move, if true, would cause far-reaching negative consequences impacting the independence of the judiciary and its transparency, and 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 with respect to appointment of judges of Honourable High Courts,” the All India Lawyers Union (AILU) said.
“It militates against the federal principles, the autonomy of the High Courts and the constitutional norms in this regard,” the letter addressed to CJI Ramana added.
Under Article 217 of the Constitution, a person can be appointed to a high court as a judge only if he or she has been a judge of a lower court for over 10 years or has been a lawyer with a minimum of 10 years’ experience in one or more high courts.
The AILU’s opposition comes against the backdrop of a move by the Supreme Court Bar Association (SCBA), which represents lawyers appearing in the top court, to set up a search committee for the purpose of recommending names of eminent lawyers from the Supreme Court as judges of high courts.
Now, Supreme Court lawyers are considered only for judges’ posts in the top court.
AILU president Bikash Ranjan Bhattacharyya told The Telegraph: “The new process, if adopted, will also curb the rights of the lawyers practising in high courts. This move is backed by the BJP, which is trying hard to centralise powers.”
Bhattacharyya added: “Not only us, more or less the Bar associations of every high court have opposed the move. The Calcutta High Court Bar Association sent a letter on Monday. The leaders of three bodies of Calcutta High Court will sit together in a day or two and jointly send a memorandum protesting against the move.”
CJI Ramana at a recent conference of chief justices of high courts had also referred to the plea of the SCBA, but had not given any assurance on the matter.
The SCBA is of the view that many advocates in the Supreme Court with over two decades of practice and with expertise in constitutional, criminal, civil, arbitration and other legal subjects should be considered for appointment as judges of high courts in view of the massive backlog of vacancies.
India has over 4.5 crore pending cases at its 25 high courts, which are functioning at 50-60 per cent of their sanctioned strength.
However, the AILU in its letter addressed to the CJI on Sunday through its president Bhattacharyya and general secretary P.V. Surendranath said it “notices with great concern and consternation the reported statement of the Supreme Court Bar Association (SCBA) that the Hon’ble CJI has agreed to the request made by the SCBA to consider elevation of Supreme Court lawyers as judges of High Courts and requested Chief Justices of High Courts to consider lawyers practicing in the Supreme Court for elevation to their High Courts”.
The AILU took exception to the SCBA constituting a search committee for identifying and selecting suitable candidates from the Supreme Court Bar.
“So far, no opportunity is conceded to the Bar Associations of the Honourable High Courts to constitute any ‘Search Committee’ to identify eligible suitable candidates from the Bar and to propose names to the Chief Justices of the High Courts for elevation as judges of the High Courts. In such a context, the… proposal of a ‘Search Committee’ and to institutionalise such appointments may lead to unhealthy and disastrous consequences,” the union said.
The AILU added: “We, as a responsible organisation of lawyers concerned with an independent and accountable judiciary and a strong Bar, respectfully appeal that this sort of seminal issues may not be decided without affording sufficient opportunity for a thorough democratic and informed debate among all the stakeholders, including the Bar Associations of the High Courts.
“The All India Lawyers Union (AILU) urges the Honourable Chief Justice of India to reject the proposal of the SCBA and may be kind enough to withdraw instructions, if any, given to the Honourable Chief Justices of the High Courts in favour of the proposal of the SCBA in this regard.”