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High courts oppose SC proposal for common test to select trial court judges
Several high courts are fighting the proposal on the grounds that control will shift to a apex court and could lead to working issues.
Two states strongly opposed before the Supreme Court on Friday the proposal to have a centralized examination system for selection of trial court judges, which the Centre is pushing for on the ground it will speed up filling of vacancies in the subordinate judiciary.
“There are vacancies in High Courts too. Should the collegium system be changed then,” senior advocate Rakesh Dwivedi told a bench headed by Chief Justice JS Khehar who took cognizance of law secretary’s letter to the SC registrar general on having a central selection mechanism – on the lines of NEET – to appoint subordinate judges.
Dwivedi and his colleagues – senior advocate Jaideep Gupta appearing for Kerala – made scathing submissions before the court and said the move was against the basic structure of the Constitution. The centralised system would “dislocate” the scheme for appointment provided under Article 233 of the Constitution.
According to the provision the Governor in consultation with the High Court makes appointments, postings and promotions of district judges in any state.
Dwivedi said the term ‘appointment’ in Article 233 was a comprehensive expression, which included the entire process. “It has to be construed like that only,” he submitted.
And, if the court wanted to alter the procedure then it has to do the same after a detailed hearing that too by a Constitution Bench. “Let the court hold that Article 233 does not exist. There should be no hurry,” he said.
Gupta supported Dwivedi and submitted the proposed system would not only go against federalism and independence of state judiciary but would make a “mockery” of the process envisaged under the Constitution. Also, it would not be under the control of a state and people from outside will take decisions without consulting the governor
Since arguments remained inconclusive, the court posted the case for a hearing on August 21. CJI Khehar said the court will give first opportunity to those opposing the system. A day later it will then hear the ones supporting it.
Due to retire on August 27, CJI Khehar had on an earlier hearing said the court had in principle agreed to have the system. However, the modalities need to be set out, he had told the state counsels not favouring a single-window test.
High Courts that have objected to the proposal include Calcutta, Chhattisgarh, Sikkim, Assam, Jammu & Kashmir, Rajasthan and Andhra Pradesh and Telangana.
