Sharp Cleavage Of Views Marks SC Hearing Over Centralised Selection Mechanism For Lower Judiciary

As the Supreme Court continued to hear concerns over implementing the proposal for Centralised Selection Mechanism [CSM] for lower judiciary this afternoon, the arguments from the counsel and the interventions from the bench witnessed sharp cleavage of views on the subject.

The Supreme Court bench of the Chief Justice, J.S.Khehar, Justices Adarsh Kumar Goel and A.M.Khanwilkar, made several vociferous interventions during the submissions of the counsel, to make light of their concerns over the CSM.

The  senior counsel for Calcutta High Court, Jaideep Gupta, completed his submissions stating that Article 233 of the Constitution, dealing with independence of state judiciary, is part of the basic structure of the Constitution, and its defence is the legacy of the Supreme Court.

Senior counsel, Harish Salve, representing Madhya Pradesh, struck a different tone from the counsel representing the High Courts, by submitting that the core issue is the preservation of the power of the High Courts to select district Judges, and that CSM only facilitates timely selection.  Justice Goel added that the CSM did not deprive the High Court of anything. “It is only to strengthen the system”, he observed.  As Salve was sitting next to senior counsel, Arvind P. Datar, whose concept note recommending CSM, set the agenda of the hearing, it was clear that Salve supported the CSM, even though his defence was very nuanced.

Salve submitted that Rule of Law is the cornerstone of our Constitution, and its basic structure.   He further submitted that our faltering justice delivery system is the basic problem, and there are inalienables and fundamental values, which will not brook dilution.

On independence of judiciary, Salve said we would err in its favour, and anything which promotes the making of rule of law a living reality is to be preferred.

Senior counsel representing Gauhati High Court and State of Assam, Vijay Hansaria, also opposed CSM, put forward the view that all High Courts must have been consulted before such a proposal to create CSM is finalised.  The bench joined issue with him when he contradicted its view that the Chief Justice of Calcutta High Court had supported CSM.  “The full court rejected this completely”, Hansaria said.  When Hansaria and the bench continued to argue on this issue, Salve stood up, to persuade the bench to focus on the main issue.

Justice Khanwilkar intervened to say that all the High Courts are facing problems in direct recruitment.

When the counsel asked why the bench is not willing to trust the Chief Justice of the High Court in the matter of appointments, Chief Justice Khehar shot back it was similar to the question posed to him during the NJAC hearings.  “Why we can’t trust the Prime Minister, or the Law Minister” [who the Act proposed to be in the NJAC], we were asked, said Justice Khehar, adding it was not an argument.   “Of course, we trust the Prime Minister, and the Law Minister, but the issue is different”, Justice Khehar explained, and added that in the case of the High  court Chief Justice, he does not belong to the  State really.

Arguments will continue tomorrow at 12 noon.