Supreme Court bench comprising Justices Arun Mishra, Vineet Saran and S. Ravindra Bhat on Wednesday continued hearing regarding appointments of Civil Judges to the post of District Judges against the quota reserved for appointments directly from the Bar.
"They have carved out a separate category for bar members. The purpose was that the bar has better representatives than those appointed directly without any experience. The bar is the fountain source of the judiciary. If you don't have experience at the bar, you cannot know all the streams of the law. My junior became a civil judge and he could not draft an early hearing application...that is why the judiciary has two streams- the bar and the judicial officers. There is foundational logic in this. If we intermix all these, we are doinginjustice to the Constitution and that which has been the state of law over the last 70 years! For 70 years, the judicial officers were not allowed to stake a claim. One fine day, in Vinay Kumar (2016), we allow that and now the logic is being carried forward! Why has this problem come now? What is that change in the law, in the Constitution, in the circumstances that we should give a go-by to the last 70 years?", reflected Justice Arun Mishra on Wednesday.
Leading the submissions for the petitioners, Senior Advocate Vibha Dutt Makhija pointed out that there are 4 categories of candidates for the purpose of Article 233- one, those with zero experience in the bar, those who joined the judicial services directly; two, judicial officers with less than 7 years' practice as an advocate prior to joining the judicial services, who constitute the largest number of cases; three, those with 7 years' practice prior to joining the judicial services; and four, those who have a composite period of 7 years or more as an advocate and then as a judicial officer.
"As per Article 233, the third category cannot be non-suited for eligibility", she submitted.
"At any time? There has to be a cut-off date...At the time of appointment, you can resign from that post. That should be your argument. The in-service concept can be taken care of by resignation. The High Courts can frame rules...", observed Justice Arun Mishra.
Ms. Makhija referred to the Constituent Assembly debates on Articles 209 A and 209 B of the draft Constitution which correspond to Articles 233 and 236-
"The only bar I detect is that you should not come from the Executive power, to ensure the separation of powers. In those days, Executive employees were given judicial responsibilities. Like Magisterial courts, where a police officer would be placed above the judicial officer...diversity, merit and independence were the purports of Article 233. What was given by 233 cannot be taken away by implied exclusion!"
"The Executive stream is excluded. How is the judicial stream not excluded? It is also excluded. The object should not be inferred from these speeches, but from the Bill. This is a very general discussion on Article 233", noted Justice Mishra.
Ms. Makhija drew the bench's attention to an amendment that was proposed to Article 233 in the debates: "...in clause (2) of the proposed new article 209A, after the words 'seven years' and 'pleader' the words 'enrolled as' and 'of the High Court of the State or States exercising jurisdiction' be inserted respectively"
"It was not necessary to incorporate and hence, was not incorporated. This doesn't help you. Once you read the Advocate's Act, it becomes clear that it was not necessary. This does not reflect your submission", Justice Mishra stated.
"It is not a reflection of your argument...The object was to bring those people as judges in a province who have practiced in that province so that they are familiar with the customs and manners", added Justice Ravindra Bhat, giving the example of Justice K. N. Wanchoo, who was the last I. C. S. judge and went on to become the Chief Justice of India.
"The object was that someone from Lahore is not brought to Assam as customs are different", agreed Justice Vineet Saran.
"Article 233 doesn't say 'JUDICIAL SERVICE'. 'JUDICIAL SERVICE' is in Article 236...you are saying that if one has 2 years' experience as an advocate and 5 years of judicial service, which is better, so why should he be debarred? But you have Deepak Aggarwal (2013) against you", continued Justice Bhat.
Justice Mishra directed the Senior Counsel to Article 124(3) in so far as it stipulates the qualification for a Supreme Court judge-
"If we accept your argument, suppose a civil judge has practised for 10 years in the High Court, he can be appointed directly to the SC? Even if he is a munsiff or a district judge? Being a High Court Justice is not necessary? Because the language of 124 is the same as 233..can they ignore the channel and jump straight to the SC because they have worked as an advocate in the High Court for 10 years?", he asked.
Next, Senior Advocate Jayant Bhushan commenced his arguments-
"There is no bar in 233 on direct recruitment of a judicial officer to the post of District Judge. The stipulation of 7 years' practice as an advocate doesn't apply if one is already in judicial service. There are two Constitution Bench decisions on this...nowhere is it said that if an in-service member is to be appointed, it could only be through promotion...while Rameshwar Dayal (1960) did not distinguish between services at all, Chandra Mohan (1966) narrowed it down to judicial services..."
"When the Constitution says 7 years, it is a writing on the wall within the Constitution that he must be from the bar", remarked Justice Mishra.
"Appointment is by direct recruitment, not promotion. For appointment, there are two sources- the judicial services, and the bar", countered Mr. Bhushan.
"The expression is 'A person not already in the service'. When one is not in service, then the qualification is practice. How can person in service be eligible under 233(2)? They can be eligible for promotion...Appointment is not one genre, it can be by promotion under 233(1)", commented Justice Mishra.
"That is how HC judges get elevated to the SC. And how a civil judge is promoted as the District Judge", added Justice Bhat.
"Rameshwar Dayal and Chandra Mohan take a historical context of the Constitution, of the pre-independence days. When Rameshwar Dayal tested the Constitution, no Rules were there. In Chandra Mohan, the Rules were there, but they allowed both to compete. But that doesn't mean there cannot be a Rule barring it", continued the judge.
"Even the Bar Council came in 61. It was not there then (when Rameshwar Dayal was decided)", said Justice Mishra.