NEW DELHI: The Supreme Court's proposal for Central Selection Mechanism for the subordinate judiciary today saw stiff opposition from West Bengal and 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 West Bengal government told a bench comprising Chief Justice J S Khehar and Justices Adarsh Kumar Goel and U U Lalit that Article 233 of Constitution envisaged that only High Courts can do the selection in subordinate judiciary.
Senior advocate Rakesh Dwivedi, appearing for state government, said this proposal was beyond the provisions of Constitution and there was no need to rush into the area which is "uncertain and unknown".
The bench said the rules contemplated that there should be a selection process, an examination and also that there should be one local language.
"So long as the rules are not touched, there should not be any problem. We have already said that no rules of the state will be touched and only a centralised mechanism will be devised to conduct the selection," it said.
Dwivedi said the rules were certainly being touched as the selection can only be done by the high courts and on the recommendation of high courts.
"This is what earlier judgements of apex court say that selection for subordinate judiciary can be done only by High Court. Now the selection will be done by a committee. There is an element of federalism here. Earlier, high courts had their own independence within the judiciary," he said.
The West Bengal counsel said that the exercise being undertaken was a pure legislative exercise which the court cannot do and it was not permissible under the Constitution.
To this, the bench said that after the proposal was made, it was discussed with all the Chief Justices of High Court and except for one or two objections, all others were on board.
"It is not done by us or the government alone but it is being done in consultation with everyone," the bench said.
Dwivedi said there were judgements which say that Chief Justice does not speak for the whole of the High Court and the apex court should ask the high court to pass a full court resolution in this regard.
"Chief justices saying something in a conference does not mean those are the views of the full court," he said.
The bench said that all High Court will have adequate representation in the selection committee.
"Today it is a case of selection committee, tomorrow it may be selection criteria. Where will it end? Just because Parliament is not doing something, it does not mean Supreme Court will enter. Things have to be done as per Constitution," the senior lawyer said.
Senior Advocate Jaideep Gupta, appearing for Calcutta High Court, said the concept note submitted by amicus curiae Arvind Datar was contrary to Article 233 of Constitution violated the basic structure of the Constitution.
"Introduction of centralised selection committee will violate Article 233 as this is a question of independence of each and every High Court in the country," he said.
At the outset, Datar informed the court that certain high courts had raised objections to the proposal including High Courts of Calcutta, Chhattisgarh, Sikkim, Assam, Jammu and Kashmir, Rajasthan and Andhra Pradesh and Telangana.
Advocate Shoeb Alam appearing for Jammu and Kashmir government said that the proposal may have a problem due to Article 35A of Constitution.
"The selection will be done as per your rule only. Those who are permitted as per your rule will be only allowed," the bench said.
The hearing remained inconclusive and would continue on August 21.
The apex court had on August 4 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 daylong hearing on the issue on August 22 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".