Maintain Practice Of Having One-Third High Court Judges From District Judiciary : Supreme Court

The Supreme Court, on Tuesday, expressed its prima facie view that the the present ratio of 1:3 between the judges who are elevated from District Judiciary to the High Courts from the service cadre and those who are elevated from the Bar needs to be maintained.

A Bench comprising Justice BR Gavai, Justice Vikram Nath and Justice Sanjay Karol requested the Chief Justice of High Courts to maintain the aforementioned ratio while making recommendations.

The Bench was dealing with applications seeking High Courts to fill vacancies from the service category (from District Judiciary) and to increase the intake to 50% from the present 25%. The 3-Judge Bench considered it appropriate to seek the views of the State Government and the High Court before passing any order of application. In view of the same, it issued notice to the Chief Secretaries of all States and the Registrar General of High Courts. The notice was made returnable on 18.04.2023.

During the course of the hearing the Amicus Curiae, Mr. Siddharth Bhatnagar had pointed out that Delhi High Court in its affidavit had stated that it may not be possible to increase the service category to 50%. The Counsel representing the Delhi High Court apprised the Bench that the concerned ratio of ⅓ to ⅔ is followed by the High Court. After recording the order, Justice Gavai told the Counsel -

“Madam, please advise your collegium judges they should make an attempt to fill all posts in the service cadre as well as the bar cadre in the same ratio.”

The application moved by Judicial Service Association of Delhi, relying on Article 217 (2) of the Constitution of India, states that there are two sources for elevation as Judges of the High Court. The first source is a person who has held a judicial office for at least 10 years and the second source is a person who has been an advocate for at least 10 years. These two sources are independent and separate, the application said.

“It may further be noted that in the Constitution, no ratio or quota is mentioned about the intake of Hon'ble High Court judges from the bar or service. Since Article 217 (2) does not prescribe any proportion for appointments vis-a-vis categories A and B. The fact that the category of judicial officers is placed prior to the category from the bar shows that the framers of the Constitution have treated both equally while placing more emphasis and responsibility on persons who have held judicial offices.”

In fact, in the scheme of the Constitution, the first clause of Article 217(2) of the Constitution is about the judicial officers from service, the applicant pointed out. And only the second clause is about elevating advocates from the bar. The first choice for elevation as a high court judge, therefore, ought to be from the judicial officers, it argued.

“..if the current ratio of 1/3 of the Judicial Officers' Quota for elevation to the high court, is increased to 1/2 (50:50), there would be a significant improvement in terms of disposal of the cases as well as quality of judgments. The same would further leave no room for any criticism regarding any lack of experience for holding an 6 esteemed post of a high court judge, as the judges from the District Judiciary, when elevated to Hon'ble High Court, already possess a minimum judicial experience of at least 10 years as a judge”, the plea further argued.

Moreover, these appointees to the high court from the subordinate judiciary had been under the constant supervision and guidance of the respective High Court, their performance is tested over time, the plea said.

Explaining this, the application stated that when candidates of subordinate judiciary are considered for elevation, their requisite data is readily available i) their understanding and the concept of the law and justice, ii) writing skills, iii) behaviour with the bar, iv) handling of litigants, v) character which is assessed by the public, the legal fraternity, and the High Court.

This apart, a judicial officer with long years of experience on the Bench is already a recluse without any attachment to any political ideology. Therefore, for the improvement of the institution and for instilling the confidence of the citizenry in the judiciary, the quota open to the District Judiciary in the High Court can be enhanced to 50%.

The application also highlighted the role played by the District Judiciary in the society.

“The District and Subordinate Courts play a prominent role in preserving law and order in the society. It is the public confidence in the Judicial system that sustains the credibility of the Judiciary. In generating and fostering public confidence, the role of the District and Subordinate Judiciary is therefore significant.”

Further, the application flagged that the issue of appointment/elevation as a high court judge cannot be looked at from the narrow perspective of the transferor and transferee High Courts only. It needs to be seen at the “pan-Indian level”.

The applicant, therefore, urged the Court to issue directions to ensure that the bar-service ratios are at least maintained in the appointment of High Court Judges, and that vacancies from the service quota are filled at the earliest.

In the past few years, suitable candidates from bar were not available timely and many times there is an inordinate delay in filling the vacancies from Bar in various High courts. This ultimately prejudices the dispensation of justice, the IA said.

The plea also seeks to direct all High Courts to fill the vacancies from the Judicial Services Quota expeditiously.

[Case Title: All India Judges Association And Ors. v. UoI And Ors. WP(C) No. 1022/1989]

Click Here To Read/Download Order