The West Bengal government on Friday strongly advised the Supreme Court against evolving a central selection mechanism for appointing judicial officers in State subordinate judicial services, saying it is against the very principle of federalism practised in Indian democracy.
Proper legislation
“Don’t rush into an area that is uncertain and unknown... first fully understand the implications. If at all, such a mechanism should come through proper legislation,” senior advocate Rakesh Dwivedi addressed a Bench led by Chief Justice of India J.S. Khehar.
The cornerstone
Mr. Dwivedi said a central mechanism to appoint judicial officers would usurp the constitutional duty of the State High Courts under Article 233 of the Constitution. The Article provides that the Governor should appoint district judges in consultation with the High Court concerned.
Mr. Dwivedi said this constitutional duty was the cornerstone of independence of State judiciary. “There is federalism at work... Judiciary is not a monolith,” Mr. Dwivedi submitted.
The Supreme Court had taken suo motu cognisance of delays and vacancies in subordinate judiciary, which was affecting the administration of justice. It had sent a concept note across to all High Courts and States, inviting their opinion on a proposal for a central selection mechanism.
The hearing began with amicus curiae Arvind Datar conveying to the Bench, also comprising Justices A.K. Goel and A.M. Khanwilkar, that several High Courts, including Calcutta, Chhattisgarh, Sikkim, Assam, Jammu & Kashmir, Rajasthan and Andhra Pradesh & Telangana had opposed the proposal.
Mr. Dwivedi argued that taking away the constitutional right of High Courts and implanting them on a central selection committee would amount to a “pure legislative exercise and that is not permissible.”
However, Chief Justice Khehar said the court had consulted with several Chief Justices of High Courts, and all were agreeable to having a centralised mechanism.
“It was a broad-based collective decision,” Chief Justice Khehar addressed Mr. Dwivedi.
“All those honourable men may have no role in the making of the rules. Views of the Chief Justices are not the view of the full court. Just because Parliament is not doing something does not mean Supreme Court will have to step in. Things have to be reconciled in a constitutional way,” Mr. Dwivedi replied.
The only way forward is for a Constitution Bench to address the issue by interpreting Article 233, Mr. Dwivedi submitted.
“We are trying to do some service to the nation. It is nobody’s gain. No country can progress if there is no functional and effective judiciary. No person from abroad would like to come to India and contest his case for 15 years. Citizen should have confidence in the judiciary,” the Bench had observed in an earlier hearing.
