Professional Income As Criteria For Rejecting Elevation: Should It Be Reconsidered?

Appointment as a judge of a high court in India has two routes – promotion from the post of a district judge/equivalent post or elevation from the bar. The operational mode for selection is almost similar and suitability and fitness is checked by the selecting agency i.e. the collegium. A high court judge has immense responsibility and, therefore, the selection criteria are equally rigid and tough. [For key points read here.[1]] A lot of factors are considered as the law laid down by the Supreme Court while checking if an individual deserves to be appointed as a judge of a high court. On perusal of the exhaustive list of criteria, one finds mention of the income of the candidate. In cases of promotions, it is the salary and is non-negotiable as the district judges/equivalent post holders are public servants and earn salary. In cases of elevation, it becomes a little difficult to accept that a candidate should be merely rejected because of the amount of money he has, irrespective of the fact that he may be meritorious and carries magisterial competence.

The collegium of the Supreme Court recently rejected candidature of a recommended advocate Piush Chaturvedi as his professional income was found to be below the prescribed level. To quote from the resolution -

“As regards Shri Piush Chaturvedi (mentioned at Sl. No. 1 above) 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 collegiums, therefore, singularly chose to reject a candidate, who otherwise could have been meritorious and deserving, only because he did not qualify the income criterion. Pertinent to note that in the collegium’s words it did not ‘inspire confidence’ to elevate him. Professional income of an advocate is an important factor in deciding elevation. It suggests as to the whether the candidate was only earning from advocacy and reflects, therefore, his dedication to the profession. It also helps the decision makers in gaining knowledge about the background of the candidate and how the candidate has maintained himself. Further, it also is advantageous in ascertaining if the ratio of the earning of the candidate is in consonance with the judgments he has assisted the court to deal with. However, the income generated by a lawyer depends on the field of his practice. It cannot be ruled out that advocates doing pro bono work or who specialise in a particular field may generate lesser comparative professional income than their counterparts who may be working in another field of law. The range also varies geographically. An advocate in Calcutta may earn less than one in Delhi. Insistence on any particular income, therefore, in my view is an important criterion for considering candidature, but must not be the sole criteria for rejecting one.

Recently, in Indira Jaising v UOI, while laying down guidelines as to designation of advocates as senior advocates, the Supreme Court categorically dealt with this question and held that insistence on any particular income was a self-defeating exercise while designating an advocate. To quote:

“34. A word with regard to minimum age and income as conditions of eligibility would be appropriate at this stage. From the narration contained hereinabove with regard to the norms and guidelines prevailing in different High Courts, it is evident that varying periods of practice and different slabs of income have been, inter alia, prescribed as minimum conditions of eligibility for consideration for designation as a Senior Advocate. If merit and ability is to be the determining factor, in addition to standing in the Bar and expertise in any specialized 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. Insofar as age is concerned, we are inclined to take the view that instead of having a minimum age with a provision of relaxation in an appropriate case it would be better to go by the norm of 10 years practice at the Bar which is also what is prescribed by Article 217 of the Constitution as a condition of eligibility for being considered for appointment as a Judge of the High Court.”

Taking a diametrically opposite stand, Union Law Minister Ravi Shankar Prasad recently had said pro bono legal services rendered by a lawyer will be a part of consideration while assessment for elevation to bench.[2] In my view, the collegium should reconsider its decision and as a precautionary measure not dismiss candidature of an advocate, who otherwise fulfills criteria to be elevated, solely on the basis of non-maintenance of requisite professional income.

[1] http://www.livelaw.in/key-takeaways-collegium-resolutions-income-age-number-judgments-affect-candidature/

[2] http://www.livelaw.in/free-legal-services-lawyer-will-considered-elevation-bench-law-minister/

Namit Saxena is a Lawyer practicing in the Supreme Court of India. The author can be reached at namitsaxenaoffice@gmail.com .

[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]