A Critique Of Supreme Court's Judgment Allowing Direct Appointment Of Judicial Officers As District Judges

The judgment delivered by a Constitution Bench of the Supreme Court in Rejanish KV v K Deepa which allowed judicial officers having seven years of combined experience in service and as an advocate to apply for direct recruitment as District Judges requires a critical analysis.

Till now, the position was that only advocates having a minimum experience of 7 years were eligible to apply for direct recruitment as District Judges(DJ). In-service judicial officers have the option of either getting promotion as DJs on merit-cum-seniority basis, or through Limited Departmental Competitive Examinations(LDCE) for selection as DJs. 50% of the DJ posts are reserved for promotional appointments, and the rest 50% is equally divided for LDCE and direct recruitment. With this judgment, serving judicial officers can also compete in the 25% stream for direct recruitment, which was hitherto reserved only for practising advocates.

The judgment has adopted a novel interpretation of Article 233 of the Constitution to reach its conclusion. The understanding so far, as settled by judicial precedents which held the field for over four decades - until being overruled by this judgment- has been that Article 233(1) deals with the promotional appointments to DJ posts and Article 233(2) deals with the direct recruitment of Advocates. This is because Article 233(2) says that a person, who is not in service, must have at least seven years of experience at the bar to be appointed as a District Judge.

This view has now been altered by the Constitution Bench Judgment. Adopting a purposive interpretation to deviate from the textual meaning, the Court says that Article 233(2), by prescribing the qualification of seven years' experience as an advocate or a pleader, does not exclude in-service candidates. Rather, in addition to in-service candidates, it enables the appointment of advocates, says the Court (para 17 of the judgment). Thus, a provision, which was expressly specifying the qualification for advocates, was construed as a provision which merely enables advocates also in addition to in-service judicial candidates. This construction effectively inverts the meaning of the Constitutional provision.

The anomaly of this interpretation is very plain to see - it means that in-service judicial candidates are left with no eligibility condition prescribed. Because Article 233(2) only specifies the experience condition for advocates. The clear wording of Article 233(2) is “has been for not less than seven years an advocate or a pleader”. Thus, the interpretation of the Court would have allowed any serving judicial officer, regardless of experience, to apply for DJ direct recruitment, as the 7-year rule is mentioned only for advocates/pleaders.

The Court is also alive to this problem. To get over this anomaly, the Court, on its own, invents an eligibility criteria for judicial officers to seek direct DJ appointment. That is, the Court applies the 7-year experience rule for judicial officers as well. The Court says that it is doing so in order to create a “level playing field” and to “bring the advocates and the in-service candidates at the same level” (see paras 157 and 172(iii) of the judgment).

The judgment thus resulted in this anomalous scenario - Judicial officers are brought into a provision which was specifically addressing advocates/pleaders, and the eligibility condition which the Constitution specified for advocates/pleaders is judicially extended to judicial officers.

The Court says the view taken by judgments from Satya Narain Singh v. High Court of Judicature at Allahabad(1985) till Dheeraj Mor v. High Court of Delhi(2020) would make the first part of Article 233(2) redundant. According to the Court, the phrase “A person not already in the service of the Union or of the State” in Article 233(2) is rendered otiose by taking the view that the provision bars persons in judicial service from direct recruitment as DJs. It is difficult to see how and why. Article 233(2) is crystal clear in its meaning - that a person who is not already in service can be appointed as a DJ only if that person has been an advocate or a pleader for at least seven years. The Constitution Bench wants this to be construed to mean that the seven-year condition applies only if the person is not in service. The fallacy of this construction is that the person is service is then left with no eligibility condition. Would the Constitution framers have intended such a vacuum, when they have specified an experience condition for advocates?

The confusion in Article 233(2) arises only when one tries to include judicial officers also there.

Unconvincing comparison between judicial experience and litigation experience

The judgment also says that "the experience the judicial officers gain while working as judges is much greater than the one, a person gains while working as an advocate”, without any supporting material. Such a comparison is misplaced. Both are different fields, having their own different sets of experiences, which are equally rich and valuable but incomparable. In fact, practising advocates might be more in touch with the ground social realities, given their day-to-day interaction with diverse litigants dealing with a variety of legal problems. The judgment in Dheeraj Mor also acknowledged this fact, by observing that advocates can bring an outside-the-system perspective to the judiciary. This was also a reason which persuaded the Supreme Court to recently mandate 3-year practice as an advocate to enter judicial service. However, as a result of this judgment, theoretically, a judicial officer with absolutely no experience as an advocate (that is someone who joined the judiciary before the 3-year mandate), is also eligible for direct recruitment as DJ(because the judgment, in para 172(iv), says combined experience of seven years or more as an advocate or a Judicial Officer).

Also, the judgment, by allowing the consideration of combined experience, is equating judicial experience with litigation experience. The conclusion may also not sit well with the other observation in the judgment that litigation experience must be continuous.

The Court in its judgment also relied on the Shetty Commission Report, which recommended that serving judicial officers must be made eligible to seek direct DJ appointment. However, it is pertinent to note that the Shetty Commission also stated that Article 233(2) must be amended to achieve this.

Purposive interpretation is adopted only when the plain language interpretation leads to an absurd result. Purposive interpretation does not mean that a provision can be inverted and spun around to achieve a predetermined purpose. Is the exclusion of judicial officers from the 25% quota available for DJ direct appointment so much of an absurdity warranting a strained interpretation which turns the Constitutional provision on its head? It is not as if judicial officers are excluded from DJ appointment. In fact, 75% of the DJ posts are reserved for in-service candidates for appointments through promotion(50%) and LDCE(25%).

The lack of adequate promotional avenues for judicial officers is certainly a problem. But the answers to that problem lie in systemic reforms - increase in strengths, streamlining of the appointment processes, timely promotions, etc.

By stretching the language of Article 233 beyond its plain meaning, the judgment, though well-intentioned, blurs the line between advocates and in-service officers, and could unsettle the structure of judicial appointments, and may edge out meritorious lawyers. On close scrutiny, it appears that the judgment falls short of sound reasoning.

The author is the Managing Editor of LiveLaw. He can be reached at manu@livelaw-in.demo.remotlog.com