New Delhi: The Supreme Court was informed on Wednesday that nearly 5,000 posts in the district judiciary remain vacant out of 25,870 sanctioned posts across the country.

A five-judge Constitution Bench led by Chief Justice B.R. Gavai was urged to consider both bar and bench experience when allowing judicial officers to sit for exams for district judge posts under the bar quota. The bench, also comprising Justices M.M. Sundresh, Aravind Kumar, S.C. Sharma, and K. Vinod Chandran, continued hearings for the second consecutive day on whether judicial officers who had completed seven years of practice as advocates before joining the bench could be appointed as district judges against vacancies reserved for members of the bar.

Senior advocate Menaka Guruswamy, appearing for some litigants, cited data from the Ministry of Law and Justice showing 25,870 sanctioned posts in the subordinate judiciary, with 4,789 still vacant. She argued that experience at the bar and in judicial service should be treated as equivalent.

“It is the same stream, two rivers flowing into the ocean. I am asking that this constitutional ocean be extended to Article 233, because that is the concept of an integrated judiciary. To do otherwise would not only impact the framers’ vision of an integrated judiciary but also the nature of the Indian state,” she submitted.

The bench is examining the interpretation of Article 233 of the Constitution, which governs the appointment of district judges. Article 233(1) states that appointments, postings, and promotions of district judges in a state shall be made by the Governor in consultation with the High Court. Article 233(2) adds that a person not already in service of the Union or State shall be eligible for appointment as district judge if they have been an advocate or pleader for not less than seven years and are recommended by the High Court.

The bench asked whether Article 233 is merely declaratory, whether it serves as a source of appointment, and how its two sub-provisions work in practice. One counsel argued that Article 233 ensures judicial independence but is not itself a source of appointment.

“Then what is the source of appointment of a district judge?” CJI Gavai asked.

Justice Sundresh suggested that under the framework, appointments and promotions fall under Article 233(1), while Article 233(2) prescribes qualifications specifically for advocates. He noted that earlier arguments attempted to bring in-service judicial officers under Article 233(2), but the current line of submissions treated 233(1) as comprehensive, leaving no scope for overlap.

Justice Sharma observed that reasoning in past judgments reflected concerns that in-service officers should not gain undue advantage or “steal a march” over advocates.