'HC Collegiums Need To Take First Call' : CJI Gavai On SCBA President's Request To Consider SC Lawyers For HC Judgeships

During the Independence Day function by the Supreme Court Bar Association, SCBA President Vikas Singh flagged the need to consider Supreme Court Lawyers for being elevated as High Court Judges and the need to create a database of all eligible lawyers who can be considered for appointments in the High Judiciary. 

The Chief Justice of India, BR Gavai, present at the event, responded that the first call regarding appointing SC lawyers has to be made by the High Court Collegiums.

“We only recommend the names to the High Court Collegium and request them to consider the names. And only after their satisfaction, the names come to the Supreme Court,” he said.

CJI Gavai however pointed out that the Supreme Court Collegium has recommended certain names of SC lawyers for High Court judgeships and many such recommendations were approved as well. He added that the Collegium was in the process of recommending more such names.

On The Need For Data Collection Of Eligible Lawyers 

In his address, Singh said :

" When we talk of the judiciary, the people expect that the judiciary should be bold, fearless, should be completely independent, and one of the features of independence is, of course, the appointment of judges in the higher judiciary."

If we do not have the right people manning the judiciary, we cannot expect the right decisions, and ultimately, we will not get the true freedom which we strived for at the time of independence." 

Singh further highlighted that when the National Judicial Appointments Committee (NJAC) was implemented, it had two parts: (1) entailing who can be eligible to be appointed in the higher judiciary, and (2) who will appoint these judges from the database of eligible persons. 

While the Supreme Court in its decision in Supreme Court Advocates-on-Record Association and another v. Union of India held that the Government cannot get primacy in the issue of appointments of judges, the issue of collecting a database of eligible lawyers for appointment was left out. 

Considering the same, Singh said , "The first part, the collection of data on eligible lawyers, was not even commented upon in that judgment, then I drafted a law and gave it to the predecessor of Mr Meghwal for bringing out a bill to regulate the collegium system."

He added that the draft law was intended to establish a judicial secretariat to collect data on the names of all eligible lawyers for recommendation purposes. 

"The purpose was that the judges should have a secretariat where they should be able to collate all the names, all eligible people and ensure that the best people from the system are considered for the elevation to the higher judiciary" 

He added that while that draft did not see the light of day, he was hopeful to find a way out through the 'memorandum of procedure' mentioned in the NJAC decision.

Lawyers Practising In Supreme Court Should Not Be Disqualified From Being Considered As HC Judges 

He also stressed the need to consider Supreme Court lawyers as equally eligible as High Court lawyers, to be recommended as High Court Judges 

" I am quite hopeful that we can have a meaningful dialogue regarding the memorandum of procedure which can bring it transparency in the matter of appointment of judges which can bring in the system of creation of a database of people eligible for the appointment in judiciary, which can bring in a base for considering the Supreme Court lawyers to be considered on a regular basis for elevation to various High Courts, because ultimately, the Supreme Court lawyers are as much eligible to be considered for High Court as any other lawyer practising in the High Court." 

"The fact that they don't practise there should not be a disqualification, but a higher qualification for considering elevation." He emphasised. 

Referring to how often the 'faceless' lawyers briefing the arguing counsel before the bench go unnoticed, Singh highlighted the need to consider such briefing lawyers who work at the backfoot but are equally eligible. 

"Most of the times, the people that collegium sees arguing, for elevation are not the bright people, because they are probably wanting to make a career as a senior advocate. The lawyers who are briefing the seniors are really many a times the real merit in the system who are actually faceless in the system and probably if this memorandum of procedure is framed, I think all this will be looked at." 

CJI Gavai's Response

Chief Justice of India BR Gavai, during his address, replied to the issues flagged by Singh. He underlined that the Supreme Court has already been successful in ensuring that most of the recommendations they have made fructify in official appointments. 

 " The collegium has always been alive to the needs for the SCBA. We are aware that lawyers coming from different state perform very well and their services should be utilised for various High Courts and I must say, I along with my colleagues have been successful in getting the names of the candidates who are practising here not only recommended to the various High Court, but also that some of them have also been appointed over the years. We are in the process of recommending some more names."

CJI added that the first call regading this has to be made by the High Courts.

" I recently also said that the Supreme Court is not superior to the High Court. Both the Supreme Court and the High Court are the constitutional courts and so far as the constitutional scheme is concerned, they are neither inferior nor superior to each other. Therefore the first call has to be taken by the High Court collegium." 

Attorney General of India, R Venkatramani and Union Minister of Law & Justice Arjun Meghwal were also present at the event.