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Centralised Selection Mechanism For Lower Judiciary Is A Mockery Of Articles 233 To 235: WB To SC

Adv. Paarivendhanadhan
20 Aug 2017 6:27 AM GMT
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Supreme Court on Friday partially heard a suo moto Public Interest Litigation on centralised selection mechanism for lower judiciary.

The bench hearing the case comprises CJI JS Khehar, Justice AK Goel and Justice AM Khanwilkar.

West Bengal  pleaded exemption from the scheme proposed by amicus curiae Arvind Datar by way of a concept note.

Senior advocates Rakesh Dwivedi and Jaideep Gupta appeared and opposed the centralised selection mechanism for lower judiciary on behalf of West Bengal and the High Court of Calcutta.

The high courts of Calcutta, Chhattisgarh, Sikkim, Assam, J&K, Rajasthan and Andhra Pradesh & Telangana are also opposing the centralised selection mechanism for lower judiciary on various grounds, including reservation, preservation of language, and preservation of power of the State to make appointment and choose appointment process as provided in the Constitution of India etc.

Highlights of the argument made by senior advocate Rakesh Dwivedi on behalf of West Bengal are:

  • The power given under Article 309 read with 233 of the Constitution to the State legislature will be dislodged in case the centralised selection mechanism for lower judiciary is brought in.According the Constitution, the Acts of the appropriate legislature may regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State and the selection can be done only by high court judges. What the Supreme Court proposes to do is to replace the judges of high court with a selection committee and that cannot be done under our Constitution.

  • The Supreme Court, in the present case, has converted an order made in the administrative side of this court to a suo moto PIL and is hearing it in the judicial side, which is not permissible. If it has to be done, then let the order passed in the administrative side be enforced so that it gives the scope to challenge the same before the court.

  • Creating a new entity in the process of selection of lower judiciary besides the high court and the state government cannot be done by the Parliament or by the state legislature as held by the Supreme Court .If it cannot be done by the Parliament or by the state government, then it cannot be done by the Supreme Court as well.

  • The court is trying to do what cannot be done by the Parliament or by the state government, with the rigour of the Contempt of Court Act, which will be a derailment of the democratic process and constitutionality.

  • Articles 233 to 235 are a complete code in itself. It provides for consultation process between the state government and the high courts of respective states not only for selection of candidates, but also for deciding the processes of such selection. This endeavour of a passing a judgment for centralised selection mechanism for lower judiciary by the court will, in effect, replace the rules framed by state governments. This is not for filling up of gaps as done in the Visaka’s case, but it is purely a legislative process undertaken by the court.

  • Justice AK Goel told Rakesh Dwivedi that even the chief justices of all the courts are for the centralised selection mechanism for lower judiciary. For that, Rakesh Dwivedi said: “As held by your lords. The opinions of chief justices are not the opinion of the high court.”

The gist of senior advocate Jaideep Gupta is as follows: The arguments were twofold: (a) Federalism and (b) Independence of state judiciary.

  • The centralised selection mechanism for lower judiciary is a mockery of the constitutional provisions, namely Articles 233 to 235 provide for selection of judges for the lower judiciary.

  • Article 233 has a positive and a negative part: The positive part is that the Governor shall consult the high court. While the negative part is that the Governor shall not consult anyone other than the high court. Therefore, creating a selection committee can be done only by a constitutional amendment, and not by a judicial decision.

  • When Jaideep Gupta said high court judges correct the exam papers of the candidates, Justice AK Goel doubted the veracity of his statement and said “no judge ever does it”. Jaideep Gupta replied: “We have stated so in the affidavit, in case, the other side shows certain infirmity in the affidavit filed before this court, then let’s see first.”

The case is in the category of ‘part heard’ and further will be held at 2 pm on Monday.

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