West Bengal, Kerala oppose centralised selection of subordinate judges

Satya Prakash

Tribune News Service

New Delhi, August 18

The proposal to install a centralised examination system for the selection of subordinate court judges on Friday met with vehement opposition from certain states, including West Bengal and Kerala, which said the move was against the basic structure of the Constitution.

During hearing on a PIL seeking streamlining of judicial appointments in subordinate courts, senior counsel Rakesh Dwivedi told a three-judge Bench headed by Chief Justice of India JS Khehar that any such centralised system would “dislocate” the scheme for appointment of subordinate court judges provided under Article 233 of the Constitution.

According to Article 233, appointments, postings and promotions of district judges in any state have to be made by the Governor in consultation with the High Court having jurisdiction in relation to the in question.

He said the term ‘appointment’ appearing in Article 233 was a comprehensive expression which included the entire process and it has to be construed like that only.

“There should be a detailed discussion. Let it go to a Constitution Bench. There should be no hurry…You can hold that Article 233 does not exist,” Dwivedi told the Bench.

As the court talked about a large number of vacancies in subordinate courts, Dwivedi said there were huge vacancies even in high courts. “Should we change the collegium system?” he wondered.

“What you are proposing is a fundamental revolution…In such a system states may not have a voice…It will affect the federal structure,” the state’s counsel had told the Bench last month.

Dwivedi’s submissions were supported by senior counsel Joydeep Gupta, representing Kerala, who said any centralized system of appointment for subordinate judiciary would violate basic structure of the Constitution.

Gupta said such a system would not only go against federalism and independence of state judiciary and would make a mockery of the process envisaged under Article 233.

Opposing the proposed system which would not be under the control of any state of high court and there would be people from outside the state, he said the governor can’t consult anybody except the high court concerned.

As arguments remained inconclusive, the Bench said it would hear the matter on Monday and Tuesday in the post-lunch session. A decision can be expected before August 27 when CJI Khehar is due to retire.

While most of the states and high courts agreed to the proposal, many of them have opposed the proposal to install a centralised examination system for selection of subordinate court judges, saying it went against federal structure of the Constitution and curtailed high courts’ autonomy.

Some southern states have raised concern about language and implementation of their state specific reservation policy in any such centralised system of selection of subordinate court judges.

The Bench has repeatedly clarified that all state-specific rules and reservation policy would continue to be adhered to even after coming into effect of the centralised examination system. The new system was primarily aimed at doing away with the inordinate delay in judicial appointments in subordinate courts, it said.

The top court had on May 9 issued notices to the Centre and all the state governments on a PIL seeking streamlining of judicial appointments in subordinate courts and ensuring timely filling up of vacancies to deal with backlog of millions of cases.

Under the proposed centralised exam system, a candidate would be able to apply for more than one state, if he/she fulfilled the eligibility requirements of the states he/she wanted to be considered for, the Bench said.

The Bench had converted a letter written by Justice Secretary Snehlata Shrivastava to Supreme Court Secretary General Ravindra Maithani highlighting the problem of unfilled judicial vacancies in subordinate courts into a PIL in order to deal with the problem.

The government has been highlighting that most of the judicial vacancies were in the subordinate courts where bulk of the cases were pending, it had noted.

The majority of around three crore cases pending in various courts, over 2.30 crore cases are pending in district courts which have a sanctioned strength of over 21,000 judges. But there are only around 17,000 judges working in subordinate courts across India, leaving a vacancy of around 4,000 judges.

The Justice Secretary’s letter dated May 1, 2017, referred to a discussion held in the Supreme Court under the chairmanship of Justice AK Goel in his capacity as Chairman of Arrears Committee on April 8 in which members of the Judiciary and the Government “explored areas of Judicial Reforms to accomplish constitutional goal of speedy justice and access to justice for all”.