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BCI Must At Least Now Speak Up For Practising Lawyers

 

It is good to learn that the Bar Council of India ensured that there is an entrance exam now for all those lawyers who want to practice which has to be cleared before lawyers can start practicing. It is good to learn that the Bar Council of India had earlier asked all the State Bar Councils in 2018 to ensure that practicing lawyers are checked, verified and issued certificates of practicing lawyers and this I witnessed myself in UP also when we were required to submit the vakalatnama of five years. It is good to see that the Bar Council of India does not want all those who are engaged in other professions to be in legal profession.

But the moot question which arises here: Why Bar Council of India which wants lawyers of District Court to go through toughest scrutiny and then declares them as “practising advocates” are barred from being considered as High Court Judges and Supreme Court Judges? Why Bar Council of India never speaks up for practising lawyers on this count? Why in this context are practicing lawyers of District Courts treated as non-practising lawyers? Why even the most eligible and competent lawyers of District Court are straightaway barred from being considered as High Court Judges and Supreme Court Judges?

It is in the fitness of things that lawyers of District Court are eligible to appear for Higher Judicial Service exam once they complete seven years of practice but why after that all doors are simply shut on them and they can only appear for HJS exam alone till age permits them depending on the category – General or OBC or SC or ST to which they belong? Why after 10 years of practice in High Court or in Supreme Court the advocates are considered eligible for being appointed as High Court Judges or Supreme Court Judges but even after 15 years of practice or 20 years of practice or 25 years of practice or 30 years of practice or 35 years of practice in the District Court is one not considered eligible for being appointed as High Court Judge or Supreme Court Judge?

It must also be asked: Why no necessary amendments have been made so far in our Constitution on Articles which pertain to conditions for appointment as High Court Judges and Supreme Court Judges? Why even after 25 years of practice in District Court are lawyers  not considered competent enough to be considered for Judgeship in High Courts and Supreme Court? Why this most worst, raw and senseless discrimination between lawyers of District Courts on the one hand and lawyers of High Courts and Supreme Court on the other hand?

As if this is not enough, it must be further added here that we see how lawyers who are unable to practice in either Supreme Court or in different High Courts and their Benches and practice in different district courts are discriminated against most blatantly. Bar Council of India also keeps demanding proof from lawyers of district court that they are practising lawyers. First it is various High Court Bar Councils who demand the same and we saw the same being done in 2018 and for five years fresh Certificates were issued as practicing lawyers after verifying all the relevant documents. But why all the High Court Bar Councils as also the Bar Council of India who identify the ‘practicing lawyers’ consider them “totally worthless” and “totally irrelevant” to be considered for appointment as High Court Judges or Supreme Court Judges? Why only advocates practicing in High Courts or Supreme Court are considered eligible for Judgeship in both High Courts as also in the Supreme Court?

What’s more, why a jurist is eligible to be appointed as a Supreme Court Judge but not eligible to be appointed as a High Court Judge or a District Court Judge? Why no  distinguished jurist has been appointed as a Supreme Court Judge till date? Why no use has been made of Article 124(3)(c) which stipulates for appointment of a distinguished jurist as a Supreme Court Judge? Is there no distinguished jurist in India from 1950 till 2021?

Briefly stated: Why Article 217 of the Constitution which provides for appointment as Judges of the High Court not be similarly amended? Why should Article 217(2) not be amended suitably to meet the present circumstances? Why should distinguished jurists not be eligible for appointment as Judges of the High Court?

Also, it would be worthwhile to ask: Why should District Court lawyers not be made eligible for appointment as High Court Judges and Supreme Court Judges? Why when Bar Council of India (BCI) which is always at the forefront in demanding proof from District Court lawyers to consider them eligible as “practising lawyers” not speak up at all when it comes to them for being considered as High Court Judges and Supreme Court Judges? Why should they be totally excluded from Judgeship most unfortunately as we see from 1947 till 2021 even if they practice for 25 years or 30 years or 35 years or 40 years or 45 years or 50 years?

Truly speaking, it must also be asked: Why can’t suitable changes be made to meet the present circumstances? Why can’t BCI take the initiative in this regard? Why can’t parity be brought about among lawyers practicing in different courts whether they are in District Court or High Court or Supreme Court?

No doubt, it is the bounden duty of the BCI to speak up for the rights of the District Court lawyers. Why should the District Court lawyers not be empowered when they deserve to be? Why even after submitting proof that they are practicing lawyers are they outrightly banned from being considered as Judges  of a High Court and Supreme Court?

It is high time and now BCI too must speak up vociferously for their rights and not just keep asking only for proof, proof and more proof for being assured that they are “practising lawyers” and not “non-practising lawyers? All the Supreme Court lawyers too apart from BCI must now seriously consider this that why are “practising lawyers” of District Court not considered for being appointed as High Court Judges and Supreme Court Judges? Why this brutal, raw and senseless discrimination has been perpetuated from 1947 till 2021?

A question worth billion dollars is:  Should this even now be continued in perpetuity even though it makes just no sense? Why are “practising lawyers” of district courts being punished for no fault of theirs? Is it a crime that they are practising in district courts? Why then are they not considered for being appointed as Judges of High Court and also Judges of Supreme Court?

Bluntly put: Why inspite of turning 45 or 46 or even 50 or even 55, the lawyers of district court are considered eligible only for appearing in the Higher Judicial Service exams which requires just 7 years experience but that’s all for them and still are not considered eligible further for becoming either High Court Judges or Supreme Court Judge? How on earth can such a raw discrimination be ever permitted? Why many of competent district court lawyers like my learned friend late Yogesh Sharma who inspite of topping in UP Higher Judicial Service exam securing 4th rank and also practising continuously for 20 years with utmost brilliance in District Court in Meerut Bar aged around 45 years when he topped in 2020 which can be independently verified also are considered totally ineligible for appointment as High Court Judges which is bound to deject them to a great extent also yet they suffer quietly? He was fit to become a High Court Judge after completing 10 years of practice in District Court but this stupid, shameless and senseless discrimination between advocates of District Court on one hand and advocates of High Court and Supreme Court on the other hand has ensured that even after 20 years of active practice his name figured nowhere for being considered as High Court Judge.

Needless to say, there are so many such instances that one has seen in Meerut alone. Sandeep Singh who at 46 is the Vice President of Meerut Bar and he enjoys a stellar reputation and is in practise since 1999 continuously which means more than 22 years then why is his name not being considered for being appointed directly at least as High Court Judge even though he should be considered for Supreme Court also and why he has to be satisfied with just appearing for Higher Judicial Service exam which demands just 7 years experience? Same is the case with many of my other good advocate friends like Amit Sharma who is in practice since last nearly two decades and gets work from High Courts also then why is he not considered eligible for being appointed as High Court Judge and so is the case with many others of my learned advocates friends like Ajit Yadav who too has held many posts in Meerut Bar like that of Vice President among others and Dheeraj Kaushik, Sanjeev Tomar and many others too have a long experience of nearly or even more than two decades yet why are they barred from being considered directly as High Court Judges and Supreme Court Judges? Their credentials can be independently verified from District Court but why inspite of practicing so hard in District Courts are they never considered for being appointed as High Court Judges and Supreme Court Judges? Why instead we see posts keep lying vacant especially in High Courts? This is what really pinches the practicing lawyers of District Court the most and they have good reason to feel the same even though they always put up a brave front and never say anything on this publicly but for which the Bar Council of India or the Supreme Court Bar Association or even the High Court Bar Associations never seriously think even for a second of doing something concrete so that those who practice sincerely in District Courts since decades and decades  get their due by being appointed very rightly as Judges of High Court and Supreme Court and remain busy only in asking for proof that they are “practising lawyers”! But now things must change and a good beginning has been made by Justice Dr DY Chandrachud who recently highlighted some flaws in our legal field which one shall mention later!

Simply put: What purpose does it serve if you shut the doors of becoming High Court Judges and Supreme Court Judges on the lawyers of District Court  straightaway even after having decades of experience? It is high time and all such raw discriminations in legal field like this including those pointed by Justice Dr DY Chandrachud must now be consigned to the flames and a new beginning must be made as early as possible so that some damage can be limited to some extent. Only then will the talent not run to private corporate companies and prefer practicing in District Courts also!  All the key players involved in doing this which includes our law makers, BCI among others must certainly play an active role to ensure that this is done at the earliest so that our legal field attracts the best talent for becoming Judges and lawyers not just in Supreme Court and High Courts but also in District  Courts and there is no discrimination on the basis of language or college or university or court!

It certainly goes without saying that, “Lawyers are lawyers” and why should there be discrimination of any kind between lawyers hinging on where he/she is practising in some District Court or High Court or Supreme Court? If lawyers can’t afford to practice in High Courts or Supreme Court due to financial constraints or any other reason and are giving their invaluable services in District Courts then why are they not being considered eligible as High Court Judges and Supreme Court Judges? Similarly why should individuals with exclusive English background be given priority only and why should those with Hindi medium or any regional language be straightaway barred from appearing in entrance exam or judicial service exam with language of their choice? Why BCI never speaks up on this?

“The discrimination begins even before one enters law school. Most of the top law schools, which offer the five-year integrated law course, conduct admissions through a competitive test which is only in English, besides English also being a separate component of testing. The effect of this is that only the privileged students with access to high quality English medium education are able to qualify for it, while the underprivileged students whose earlier education has been in the national or regional languages and who aspire to enter into the judicial services are deprived of the learning at these institutions. As a result, these national law schools turn out candidates who are vying for lucrative placements at private law firms, which also has a consequence on the legal education to those who join the judiciary.” These enlightening, enriching and enlivening words which have been expressed most eloquently, elegantly and effectively have been expressed by none other than Justice Dr DY Chandrachud who is not just an eminent senior Judge of the Supreme Court but also is in line to become the future Chief Justice of India from November 10, 2022 to November 10, 2024. So what he says can certainly not be dismissed lightly as a view by just any other person. It has to be taken most seriously by our law makers and given a serious consideration without any further delay.

Needless to say, Justice Dr DY Chandrachud was speaking at the virtual launch event of CEDE (Community for the Eradication of Discrimination in Education and Employment), which is a network of lawyers, law firms, Judges and other organisations and individuals who are committed towards reforming the Indian law profession. What Justice Dr DY Chandrachud has suggested is in fact the crying need of the hour also! Why should there be any kind of discrimination on the basis of language?

To put it mildly: Hindi is spoken by maximum people in our  country and is most popular also. Similarly regional languages are spoken by many people as different states have different regional languages. Why then should those individuals who are well versed in Hindi or in any other regional language but not in English be made to mandatorily appear in English for seeking admission in any national law school and similarly why those who aspire to join judicial service be made to suffer similarly as  they fail to gain admission in the national law school due to not being well versed in English. How can such senseless discrimination be ever justified by anyone? But this is exactly that has been perpetuated in India even 74 years after the colonial British rulers have left India in 1947!

As if this is not enough, we even see some states like Delhi, Haryana among others where the medium of exam for judicial services is only English and not Hindi or any other regional language! Why should those who speak Hindi or some other regional language be made to suffer and kept in the cold just because they are not well versed in English? It is high time and our law makers must deliberate, debate and discuss on this thread bare and take the right decision so that those who have Hindi medium or any other regional language are not made to suffer in the cold!

Adding more to what he stated above, Justice Dr DY Chandrachud added that till the last year, the Common Law Admission Test (CLAT) incorporated questions which tested logical reasoning capabilities that required the use of sight and which in turn discriminated against the visually challenged candidates. Justice Chandrachud also sought to point out that, “Although the National Law School consortium has now assured that this would not happen in the future, the replication of this commitment in reality is awaited.”

It cannot be glossed over that Justice Dr DY Chandrachud then also very rightly and remarkably pointed out that, “Even if a student clears this exam, then begins the secondary graduation – the choice of law school. There is a real and perceived bias among various law schools and students of the top tier National Law Universities are deemed to be better on account of their law school affiliation. But these institutions are expensive and scholarships, or even loan based scholarships, may not suffice. So one exam taken by an 18-year-old becomes a means of differential treatment which has consequences on their law school experience and life trajectory thereafter.”

More damningly, Justice Chandrachud then further goes on to explain that it is within the law school where begins the third gradation that determines which students thrive and succeed. He made it a point to mention without mincing any words that students hailing from Dalit, adivasi and other marginalized sections are often found to be relatively behind not only in terms of academic grades, but also other extracurricular activities like moots, debates and internship.

It cannot be also lost sight of that Justice Dr DY Chandrachud then seeks to point out forthrightly that, “The explanation which is most commonly rendered for this is that they are just not coping with the pressure. Nothing could be further from the truth! The fact is that the natural privilege which their counterparts have been entitled to manifests into their confidence to participate and even seek training and mentorship, while there is just not enough peer and faculty support for the students from marginalized backgrounds. They are deprived of publishing and research assistance, internships offered are often in tier 1 cities and do not pay a living stipend, as a result of which students who do not hail from well-off backgrounds dismiss these opportunities.”

Not stopping here, it must also be noted that Justice Dr Chandrachud then further goes on to canvass that the fourth gradation which commences at the stage of employment after law school. The students from the marginalized backgrounds are underrepresented in law firms. Even employment at the chambers of advocates /senior advocates are based on informal references through privileged networks and those students who hail from families having roots in the legal profession have an edge over the others.

In summation, Justice Chandrachud then holds that, “So a lawyer, who is 23-25 years old at the embarkment of his career has already been knocked down 4 gradations in relation to his peers, for no fault of his!”

As we see,  Justice Dr DY Chandrachud of the Apex Court has like an experienced doctor very rightly caught hold of the “raw nerve” and it is high time and what he has pointed out must now be  addressed promptly along with the other serious shortcomings as already illustrated above! This will definitely go a long way in ensuring that our legal field and judicial system remains absolutely fit to meet the present circumstances in the best possible manner! It cannot be kept in cold storage any longer.

Also, the key recommendations of the Indian Law Commission which requires implementation like creating more High Court Benches especially in big states like UP which accounts for maximum pending cases also yet has just one Bench only and that too so near to Allahabad at Lucknow as recommended by 230th report of Law Commission of India made in 2009 and 229th report of creating regional Benches of Supreme Court must also be implemented at the earliest so that our legal system benefits as a whole and not just one or two states as most unfortunately we see right now in our country which is nothing but a status quo since last more than 74 years! It will do our legal system a world of good! Justice Dr DY Chandrachud has set the cat among the pigeons and one fervently hopes that our law makers will certainly make the requisite corrections at least now as suggested very rightly by him apart from what I have humbly suggested!

In sum, it definitely gs without saying that “District Court Lawyers” have suffered immensely in silence for far too long and it is high time and now they must get their due also and treated at par with High Court advocates and after 10 years of practice must be considered eligible for being appointed as High Court Judges at least not that even after 20 years they are just eligible to appear only for HJS for which just 7 years experience is required! Let’s hope good sense prevails over our law makers, Centre, Bar Council of India and different Bar Councils of different States and they all collectively rise to the occasion at least now and do the needful in this direction otherwise there is just no point in just referring to them as “practicing lawyers” because in reality you are “maiming” them and treating them at par with non-practising lawyers or lawyers with just 7 years experience which cannot be justified by anyone under any circumstances somehow or anyhow! This most serious issue has been swept aside for far too long and it now cannot be held in abeyance any longer!

It is a no brainer that the District Courts form the “backbone” of our “judiciary” and yet when we see on ground we find that they are mocked at and discriminated against and even after having practice of many decades are still not considered even for being eligible as High Court Judge leave alone Supreme Court! But enough is enough and now things must change as change is the law of progress which our country needs desperately at this stage! There must be no more any discriminations between lawyers of District Court or High Court or Supreme Court because lawyers are lawyers and not everyone is so rich that he/she can afford to stay where High Courts or their Benches are located or where Supreme Court is located! It certainly brooks no more delay any longer!

Sanjeev Sirohi

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