J&K seeks more time over centralised appointments to lower judiciary, says interpretation of Constitution needed

New Delhi: The Jammu and Kashmir government told the Supreme Court on Tuesday that the proposal for Centralised Selection Mechanism for appointments in the subordinate judiciary needed interpretation of Constitution as the state enjoyed a special relationship with the Centre.

Seeking to refer the matter to a larger bench, the state government told a bench comprising Chief Justice JS Khehar, and justices Adarsh Kumar Goel and AM Khanwilkar that appointment of district judges was a constitutional power of the governor
in consultation with the high court.

Senior advocate Rakesh Dwivedi and advocate Shoeb Alam, appearing for the state of Jammu and Kashmir, told the bench
that this constitutional power cannot be taken away by the exercise of judicial power by apex court.

Representational image. Reuters

Representational image. Reuters

Dwivedi said that there were various Constitution bench judgments interpreting the Constitution and hence the matter should be heard by a larger bench. "Appointment of district judges is a constitutional power vested with the governor, to be exercised in consultation with the high court. Thus, this power cannot be taken away or abridge by exercise of judical powers by court," he said.

He said that Jammu and Kashmir enjoyed a special relationship with the Union of India and under Rule 9 of Higher Judicaal Services Rules, 2009, only a permanent resident of the state is eligible for appointment as a district judge.

Dwivedi further contended that the concept of a common syllabus will be anomalous, since the laws of the state are different from rest of the country.

The apex court deferred the hearing on the issue for two weeks after hearing the contentions of Chhattisgarh High Court, the Delhi High Court, the central government, and amicus curiae Arvind Datar.

Senior advocate Raju Ramachandran, appearing for Delhi High Court, told the top court that a full court meeting of high court was convened on 21 August.

He said that the members of Central Selection Committee (CSC) should be from among the sitting judges of all the high courts and selection based on multiple choice questions will not be a meaningful assessment as it would dilute merit.

However, solicitor general Ranjit Kumar, appearing for the Centre, refuted the contentions that the proposal violated Article 233 of the Constitution. The matter will now be heard by a new bench as Chief Justice Khehar will retire on 27 August. Earlier, Madhya Pradesh had supported the Central Selection Mechanism proposed by the top court for appointment in subordinate judiciary, saying the process will assist the high courts.

The apex court's proposal last week met with stiff opposition from the Calcutta High Court, which claimed that the move was unconstitutional and would breach the federal structure.

The apex court had taken the proposal on its judicial side to arrive at a consensus over the mechanism for appointment in subordinate judiciary, terming it as a "service to nation" on the grounds that the delay in recruitment had led to a huge backlog of cases.

The apex court had on 4 August indicated that it was inclined to go ahead with a proposal for a centralised selection mechanism for appointment of judicial officers in the subordinate judiciary even if there was no amicable consensus among various the high courts and the states.

It had said that if the need arose it might accord a day-long hearing on the issue on 22 August to resolve the objections of various states and high courts to the proposal. The court had tried to assuage the concern of various states and high court, saying there would be no breach and interference in the federal structure and it is "trying to do some service to the nation".


Published Date: Aug 22, 2017 10:29 pm | Updated Date: Aug 22, 2017 10:29 pm


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