It is a matter of grave concern that while our Constitution enshrines the right to equality as postulated in Article 14 but in practice what we witness is just the reverse. Why is it that to become a High Court Judge or Supreme Court Judge one has to have a minimum of 10 years practice in High Court or any of its Benches or in the Supreme Court right since 1947 till 2021 but if a lawyer of District Court aspires to become a High Court Judge or Supreme Court Judge, it is just an utopian dream for him/her as he/she is exclusively barred by dint of Article 124(3) which postulates that, “A person shall not be qualified for appointment as a Judge of the Supreme Court unless he is a citizen of India and –
(a) has been for at least five years a Judge of a High Court or of two or more such Courts in succession; or
(b) has been for at least ten years an advocate of a High Court or of two or more such Courts in succession; or
(c) is, in the opinion of the President, a distinguished jurist.
Explanation I .- In this clause “High Court” means a High Court which exercises, or which at any time before the commencement of this Constitution exercised, jurisdiction in any part of the territory of India.
Explanation II .- In computing for the purpose of this clause the period during which a person has been an advocate, any period during which a person has held judicial office not inferior to that of a district Judge after he became an advocate shall be included.”
Similarly, now coming to the conditions for being appointed as High Court Judge, it is stated in Article 217(2) that, “ A person shall not be qualified for appointment as a Judge of a High Court unless he is a citizen of India and-
(a) has for at least ten years held a judicial office in the territory of India; or
(b) has for at least ten years been an advocate of a High Court [* * *] or of two or more such Courts in succession; [*]
[* * *]
Explanation.-For the purposes of this clause-
[(a) in computing the period during which a person has held judicial office in the territory of India, there shall be included any period, after he has held any judicial office, during which the person has been an advocate of a High Court or has held the office of a member of a tribunal or any post, under the Union or a State, requiring special knowledge of law;]
[(aa)] in computing the period during which a person has been an advocate of a High Court, there shall be included any period during which the person [has held judicial office or the office of a member of a tribunal or any post, under the Union or a State, requiring special knowledge of law] after he became an advocate;
(b) in computing the period during which a person has held judicial office in the territory of India or been an advocate of a High Court, there shall be included any period before the commencement of this Constitution during which he has held judicial office in any area which was comprised before the fifteenth day of August, 1947, within India as defined by the Government of India Act, 1935, or has been an advocate of any High Court in any such area, as the case may be.”
Truth be told, we see routinely how lawyers who are unable to practice in either Supreme Court or in different High Courts and their Benches due to financial constraints or any other reason and practice in different district courts are discriminated against most blatantly and for whom no one ever care to speak up vociferously. 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?
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 straightaway from being considered as High Court Judges and Supreme Court Judges? Why those eminent lawyers of District Court who fare exceedingly well in legal profession as lawyers are barred from becoming High Court or Supreme Court Judge? 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 or 40 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?
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 then they are not considered eligible further for becoming either High Court Judges or Supreme Court Judge unless they become an HJS? Those who are in active practice are rarely able to spare time for preparation and therefore fail to clear their exams but this certainly does not mean that they are incompetent in any manner! Why can’t their names especially those whose reputation is impeccable in that district where he/she is practicing be considered for appointment as High Court Judges? 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 and he could render his service just as ADJ for just 11 months before he died even though he was fit to become a High Court Judge. Why posts of High Court Judges keep lying vacant yet lawyers from either District Court or any other Court are not appointed?
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, Parvez Alam, Sanjeev Tomar, Shamim Agha and many others too like my senior advocate brother Inderjit Singh, Rakshpal Singh among others have a long experience of nearly or even more than two decades or two and a half 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!
Why 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 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”? Should the practicing lawyers of District Court not get their due?
Simply put: What purpose does it serve if you shut the doors of becoming High Court Judges and Supreme Court Judges on them straightaway? 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. 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? 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?
In sum, it definitely goes 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 as we see most unfortunately right now”! 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! It is high time and now at least the time has come when there must be no more any such brutal, baseless and blind 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! One fervently hopes that BCI, State Bar Councils as also the law makers including Centre among others also now honestly introspects on this and make the requisite changes in this regard!