04/10/2026
The Abdication of the Best: Why India's Finest Legal Minds Refuse the Bench, and Why It Matters
The Supreme Court of India is, by design, the ultimate arbiter of the constitutional compact. Its judges are meant to be drawn from the finest legal minds the nation can produce—advocates whose intellectual firepower, courtroom mastery, and moral courage have already been tested in the crucible of the Bar. Yet a quiet, corrosive crisis has taken hold at the heart of the Indian judiciary: the very lawyers best equipped to sit on the Bench are, with rare exceptions, refusing to accept judgeship. This is not a mere staffing inconvenience. It is a structural failure with profound constitutional consequences.
The evidence is neither anecdotal nor speculative. It comes from the mouths of sitting and former judges, from the Chief Justice of India, and from the institutional records of judicial vacancies. The problem is systemic, and its causes are embedded in the architecture of judicial appointment, remuneration, and post-retirement security.
The most immediate and measurable deterrent is economic. A judge of a High Court in India earns ₹2.25 lakh per month plus allowances. A judge of the Supreme Court earns ₹2.50 lakh per month. The Chief Justice of India earns ₹2.80 lakh per month. These figures, while respectable in absolute terms, are fundamentally disconnected from the earning capacity of the senior advocates from whom High Court and Supreme Court judges are drawn.
A senior advocate in the Supreme Court of India routinely earns several crore rupees annually. The Chief Justice of India's annual salary—₹33.6 lakh—is comparable to what a senior associate at a top-tier law firm earns in their first few years. The disparity becomes even starker when one considers the trajectory of a successful litigator. As Justice L. Nageswara Rao, a former Supreme Court judge, observed: senior counsel like Arvind Datar refused judgeship precisely because accepting the Bench would mean sacrificing decades of a flourishing practice. Datar told Rao that he would have "got about five years as a judge" but wanted "to practice till I'm 85".
Justice Dipankar Datta, a sitting judge of the Supreme Court, has been remarkably candid about this. Speaking at the Supreme Court Bar Association National Conference in 2026, he recounted approaching "three, four very promising, very talented lawyers between the age group of 44 to 47" in the Bombay High Court. Their response was unequivocal: "Sir, nowadays times have changed. Our children go to abroad for educational purposes. With rupees 2.25 plus allowances, it will not be possible for me to make both ends meet." Justice Datta's conclusion was stark: "So good lawyers refuse judgeship because what we pay is not sufficient for their needs".
He recounted another instance, relayed by his predecessor, of a senior advocate who, when offered judgeship, replied: "Sir, I have four pets at home, and I spend rupees 4 lakhs for my four pets. If I have to become a judge, I have to steal". The anecdote is humorous only on its surface. It exposes a brutal arithmetic: a judge's salary cannot sustain the lifestyle of the professional class from which judges must be drawn. Justice Datta's plea was not for luxury but for viability: "You don't have meritorious persons coming over to the judiciary. You need to incentivize them so that they come over. Not everyone is a hermit".
The economic deterrent does not end at retirement. Article 124(7) of the Constitution prohibits a retired judge of the Supreme Court from pleading or acting before any court or authority in India. Article 220 imposes a similar bar on retired High Court judges, prohibiting them from practising in the court where they served. The consequence is severe: a lawyer who accepts judgeship at 45 or 50 faces a compulsory end to their professional life at 62 or 65, with no possibility of returning to practice.
Justice Rao articulated this with precision: "Most of them ask: what would they do after retirement? Once you are a Supreme Court judge, you can't practice. 65 is no age for retirement". A lawyer who refuses judgeship and continues at the Bar may earn, and continue earning, well into their seventies and eighties. The judge, by contrast, trades a lifetime of escalating income for a fixed salary and a pension that, while constitutionally protected, is modest by comparison. The pension for a retired High Court judge is approximately ₹13.5 lakh per annum, and for a retired Chief Justice of a High Court, ₹15 lakh per annum. For a senior advocate accustomed to earning multiples of that annually, the economic calculus is not merely unfavourable—it is irrational.
The institutional mechanism of judicial appointment itself operates as a powerful deterrent. The collegium system, which vests the power of recommending judges in the Chief Justice and a small group of senior judges, has been repeatedly criticised for its opacity, its insularity, and its tendency to reward proximity over merit. The Supreme Court Bar Association has publicly stated that the collegium "routinely overlooked qualified lawyers from the Supreme Court bar for elevation to high courts in their respective states, despite their extensive exposure to national jurisprudence," leading to what its president termed a "systematic marginalisation of valuable judicial talent".
The collegium does not function as a transparent selection process. It functions as a system of co-option, where "informal networks and visibility in court allegedly outweigh analytical ability and courtroom preparation". A brilliant advocate who has not cultivated the right relationships, or whose practice does not bring them into regular contact with the senior judges who constitute the collegium, may simply never be considered. The process is further complicated by the delays and uncertainties of executive approval. The Supreme Court itself has observed that "many successful lawyers have been reluctant to become a judge due to the uncertainty involved in the appointment process"—the long wait, the career held in suspension, the "monetary losses" incurred while their names languish in government files.
Justice Datta has directly criticised this delay: "If names are sent, the names are kept pending at the governmental level at least for five to six months. Thereafter, the files move". Chief Justice of India B.R. Gavai has publicly lamented that an "extraordinary" woman lawyer withdrew her consent for elevation to the Delhi High Court after waiting nearly a year without any response from the Centre. This is not a system designed to attract talent. It is a system designed to test patience to the point of exhaustion.
Chief Justice Ranjan Gogoi, in a moment of remarkable candour, identified a deeper malaise: "One of the reasons is that the office of a judge in the higher judiciary is losing its aura and majesty." He added that it is the aura and majesty of the office that attracts young talent. What did he mean? The prestige of the judicial office has been steadily eroded by the very conditions of its exercise: the crushing caseload, the political pressures attendant upon transfers, the public questioning of judicial integrity, and the sense that judges are increasingly beleaguered rather than venerated functionaries of a coordinate branch of government.
The transfer of High Court judges across states, often in batches that bear the appearance of punitive action, has had a chilling effect on potential recruits. Former Advocate General B.V. Acharya warned that such transfers "are discouraging competent lawyers from accepting judgeships. Many competent advocates are declining to become judges… This will make it worse". A judge who accepts the Bench must accept the possibility of being transferred to a distant High Court with little notice and no recourse—a prospect that is particularly unattractive to lawyers with established practices, family ties, and social capital in their home jurisdiction.
The working conditions themselves are punishing. Justice Madan B. Lokur has described the chain reaction: vacancies mean that sitting judges bear an impossible burden, which "affects justice delivery" and "affects quality because you need time to make good decisions… When there is an overburden, how does the judge take out that adequate amount of time to make good decisions for each case?". The judge's job, as currently structured, is not merely demanding. It is exhausting to the point of burnout.
The refusal of the best lawyers to join the Bench is not a private matter of individual career choice. It is a public constitutional injury.
First, it degrades the quality of judicial decision-making. The Supreme Court and the High Courts are not merely dispute-resolution bodies. They are constitutional courts entrusted with the interpretation and enforcement of fundamental rights, the arbitration of federal disputes, and the preservation of the rule of law. The intellectual demands of these functions require, at the very least, lawyers of exceptional analytical ability and constitutional imagination. When such lawyers systematically decline judgeship, the courts must draw from a shallower pool.
Second, it exacerbates the vacancy crisis. As of March 2026, 316 posts of judges were lying vacant in High Courts across India. High Court vacancy rates hover around 30 percent. The refusal of qualified lawyers to accept judgeship is a direct cause of these vacancies. Justice Lokur was unequivocal: "Good lawyers are not willing to become judges, which is why high courts are finding it difficult to recommend persons for judgeship". The consequence is a judiciary operating at less than its sanctioned strength, with a backlog that exceeds 50 million pending cases.
Third, it erodes public trust. A judiciary that cannot attract the best lawyers is a judiciary that appears, to the public, to be composed of those who could not succeed at the Bar or who seek judgeship for reasons other than a commitment to justice. Chief Justice Gogoi's apprehension about the loss of "aura and majesty" is ultimately an apprehension about the loss of public confidence. The legitimacy of judicial authority rests not on the coercive power of the state but on the perception that judges are independent, competent, and worthy of the trust they command.
The problem is not insoluble, but it requires a willingness to confront uncomfortable truths.
First, judicial remuneration must be substantially enhanced. Justice Datta's plea for "incentivisation" is not a plea for luxury. It is a plea for parity of dignity. The salary of a High Court judge should bear some rational relationship to the earning capacity of the Bar from which judges are drawn. A High Court judge earning ₹2.25 lakh per month while the senior advocates appearing before him earn crores is a structural absurdity that cannot be sustained.
Second, the post-retirement bar on practice must be reconsidered. The constitutional prohibition on post-retirement practice was designed to protect judicial independence. But it has become a barrier to judicial recruitment. The Law Commission's proposal to relax the ban—permitting retired judges to practise in the Supreme Court and in High Courts other than the one in which they served—deserves serious reconsideration. A less absolute bar would reduce the economic penalty of judgeship without compromising independence.
Third, the collegium must be reformed to ensure transparency and merit-based selection. The Supreme Court Bar Association's demand for a finalised Memorandum of Procedure is a step in the right direction. But transparency alone is insufficient. The collegium must actively reach out to the best lawyers, not wait for them to present themselves. It must record reasons for rejection and reconsideration. It must ensure that first-generation advocates and lawyers from marginalised backgrounds are not systematically excluded by invisible social barriers.
Fourth, the working conditions of judges must be improved. Vacancies must be filled expeditiously. Transfers must be governed by clear, transparent criteria and must not be used as instruments of discipline or punishment. Infrastructure, support staff, and research assistance must be enhanced to reduce the administrative burden on judges and allow them to focus on adjudication.
The refusal of India's best lawyers to accept judgeship is not a problem that will solve itself. It is the product of deliberate institutional choices—choices about remuneration, about appointment, about post-retirement security, about the dignity of the judicial office. Those choices can be unmade.
But the longer the current state of affairs persists, the more difficult reform becomes. A judiciary that cannot attract the best will, over time, cease to be the judiciary that the Constitution envisioned. The consequences for the rule of law, for the protection of fundamental rights, and for the very idea of constitutional governance are not speculative. They are already visible in the vacancies, the delays, and the quiet erosion of public trust.
The best lawyers in India are not refusing judgeship because they lack a sense of duty. They are refusing because the terms of that duty, as currently structured, are unreasonable. The Republic must decide whether it values the judicial office enough to make it worthy of its finest minds. The Constitution assumes that it does. The current reality suggests otherwise. The gap between the two is the measure of our constitutional crisis.
This article is written by NK Goswami ,a practicing advocate in Supreme Court of India.
