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Above: Advocates at the Patiala House Courts in New Delhi/Photo: Anil Shakya

In a move that could transform the judiciary, the Collegium has tweaked a key criterion for eligibility of a lawyer for appointment as a high court judge

By Venkatasubramanian 

In February 12, the Supreme Court Collegium recommended 10 advocates as judges of the Allahabad High Court. The number of recommendees could have been less had not the Collegium decided to tweak a key criterion long used to assess the eligibility of advocate-candidates for the post of high court judges.

According to the Memorandum of Procedure (MoP) for appointment and transfer of chief justices and judges of high courts, a lawyer candidate should have a minimum average net professional income of Rs 7 lakh in the preceding five years for being considered for elevation to the post of a high court judge.

The three-member Collegium comprising the Chief Justice of India Ranjan Gogoi, Justice AK Sikri and Justice SA Bobde took note of the fact that net professional income of some of the recommendees was less than Rs 7 lakh per annum. The Collegium, its resolution claimed, considered it appropriate to relax the income criterion to a reasonable extent in cases where such recommendees belong to an SC/ST/OBC or represent the government in their capacity as standing/panel counsel before the courts.

This is a significant amendment of the MoP which the Collegium has on its own decided to follow. This was done because the centre’s revision of the MoP, on the lines suggested by the Collegium following the Supreme Court’s judgment in the National Judicial Appointments Commission case in 2015, is still incomplete. The Collegium has apparently carried out this reform for valid reasons.

The long wait for HC judges continues

There is an approved strength of 1,079 posts of judges in 25 high courts. As of February 1, there are only 679 judges (527 permanent and 152 additional judges), leaving 400 vacancies (for 244 permanent and 156 additional judges) to be filled. The position as on January 1 was 687 judges (535 permanent and 152 additional judges), as against 392 vacancies (for the posts of 236 permanent and 156 additional judges). With more judges retiring, the number of vacancies will keep rising, with the stakeholders—Supreme Court and High Court Collegiums and the centre—unable to keep pace with the process of filling them up in time.

According to a news report, over 120 recommendations by 13 High Courts for appointment of judges are pending with the government and the Supreme Court Collegium.  This means that the High Courts are yet to recommend suitable names for the remaining 280 vacancies.

Chief Justice Ranjan Gogoi recently denied reports that the centre was sitting over the Collegium’s recommendations. According to him, only 30 recommendations are with the government, which clears appointments quickly. He also admitted that 65 proposals of the Collegium, sent back to it by the centre for reconsideration, are pending with it.

The Memorandum of Procedure (MoP) for appointment of High Court judges requires that a time-bound schedule should be followed so that appointments are made well in advance, preferably a month before the occurrence of the anticipated vacancy. The MoP also requires that the vacancies of permanent judges ought to be filled up first, before recommendations for appointing additional judges are considered. This shows that none of the three stakeholders has complied with the MoP in letter and spirit.

When a permanent vacancy is expected to arise in any year in the office of a judge, the chief justice will as early as possible, but at least six months before the date of occurrence of the vacancy, communicate to the chief minister of that State his views as to the persons to be selected for appointment.

The MoP requires that as the governor is bound by the advice of the CM, a copy of the chief justice’s proposal, with a full set of papers, should simultaneously be sent to the governor as well to avoid delay. Similarly, a copy may also be endorsed to the CJI and the Union minister of law, justice and company affairs to expedite consideration, it says.

The MoP further requires that the governor should forward his recommendation to the law minister as early as possible but not later than six weeks from the date of receipt of the proposal from the chief justice of the High Court.  If the comments are not received within the said time frame, it should be presumed by the law minister that the governor (i.e. the chief minister) has nothing to add to the proposal and proceed accordingly, the MoP adds.

The Union law minister, after consideration of the recommendations, forwards them to the CJI, that is, the Collegium, which sets its process in motion, and is expected to send its recommendation to the minister within four weeks. The law ministry then has three weeks to put up the Collegium’s recommendations to the prime minister, who advises the president to make the appointment.

Thus, for a recommendation from the chief justice of the High Court to come to fruition, it should not take more than 13 weeks, although the maximum time available to a chief justice of the High Court is six months. If the stakeholders are transparent about the time taken to process a recommendation at every stage, one can determine who is guilty of non-compliance with the MoP. Data on pendency of recommendations with a constitutional functionary reveals nothing unless the date of initiation of the proposal and the time taken to process each recommendation are also disclosed.

—By Venkatasubramanian

The centre has not yet notified the revised amount pertaining to the minimum income threshold for recruitment as judges. However, according to a report, candidates belonging to the SC/ST/OBC categories who earn up to Rs 5 lakh a year will be considered. For others, the income threshold will remain unchanged.

On December 4, 2017, the Collegium comprising the then chief justice, Dipak Misra, and Justices J Chelameswar and Ranjan Gogoi had considered the names of six advocates as judges of the Calcutta High Court. It had also rejected the name of one of the candidates, Piush Chaturvedi, after finding that his average professional income was well below the prescribed minimum professional income limit.

The resolution passed that day read: “As regards Shri Piush Chaturvedi…. his average professional income is well below the prescribed minimum professional income limit. As he does not qualify the income criterion, the proposal for his elevation to the High Court does not inspire confidence and is, therefore, rejected.”

The professional income of an advocate is deemed to be an important criterion in deciding whether he merits selection as a judge. According to Namit Saxena, a lawyer practising in the Supreme Court, the income suggests whether the candidate is only earning from advocacy and reflects his dedication to the profession. It also helps the decision-makers in gaining knowledge about the background of the candidate and how he has maintained himself, he said. It also helps the Collegium to satisfy itself whether the candidate’s earnings are in consonance with the judgments he has assisted the court in dealing with, he added.

However, the income earned by a lawyer depends on the field of his practice. Advocates doing pro bono work or taking up labour cases may earn less than corporate lawyers. There are also geographical variations. An advocate in Kolkata may earn less than one in Delhi. While income may be an important criterion in considering the eligibility of a candidate, it cannot be the sole criterion for rejecting him, said Saxena in an article.

On October 12, 2017, the Supreme Court held in Ms. Indira Jaising v Supreme Court of India through Secretary General and Others that insistence on any particular income was a self-defeating exercise while considering the eligibility of an advocate for designation as a senior advocate. The Court found that different high courts had prescribed different slabs of income as minimum condition for eligibility for designation as a senior advocate.

Justice Gogoi, who authored that judgment on behalf of the bench, which included Justices Rohinton Fali Nariman and Navin Sinha, observed: “If merit and ability is to be the determining factor, in addition to standing in the Bar and expertise in any specialised field of law, we do not see why we should insist on any minimum income as a condition of eligibility.

“The income generated by a lawyer would depend on the field of his practice and it is possible that a lawyer doing pro bono work or who specializes in a particular field may generate a lower return of income than his counterpart who may be working in another field of law. Insistence on any particular income, therefore, may be a self-defeating exercise”. The criterion found relevant for elevation as a senior advocate may also be valid for elevation of a lawyer as a judge.

Union Law Minister Ravi Shankar Prasad was also reported to have expressed the view that pro bono legal services rendered by a lawyer would be a consideration for elevation to the bench as a lawyer’s income is bound to be less if he or she decides to forgo fees for arguing a case in public interest. It may be unfair to make such a lawyer ineligible to become a judge if his income falls below a prescribed limit.

Justice DY Chandrachud of the Supreme Court, while participating in a recent roundtable discussion, was of the view that unless conventional yardsticks for assessing women lawyers are broken, we can’t see more women judges on the bench. The yardsticks used to assess women lawyers are not gender neutral, he said.

He recounted an instance during his tenure as chief justice of the Allahabad High Court when the name of a woman lawyer had to be removed from the list of candidates recommended for elevation to the bench on the ground that her income did not match the prescribed yardsticks. Despite her being articulate and good at her work, her name was removed though the fact was that she largely fought labour law cases and for the very poor, he recalled.

Justice Chandrachud added that if one needs a greater sense of inclusivity in the judiciary, then the yardsticks for selection of lawyers as judges will have to be changed, and merely changing the Collegium system will not yield the desired results.

The Collegium’s February 12 resolution, therefore, has the potential to transform the judiciary if it is backed with sincerity by all the stakeholders.

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