Mischief Afoot?

A Chief Minister’s conference, with the Union Home Minister presiding, has taken decisions which may lead to a further clipping of the powers of the judiciary. The decision to draw up a panel of names of judicial officers from which high court judges may be selected looks harmless enough at first glance. But in actual fact it will restrict the choice of the Chief Justices who select judges according to the regulations prescribed in the Constitution. And Article 217 (2), (a), (b), clearly lay down the principles to guide the Chief Justices. The executive is hardly competent to improve upon the constitutional provisos. The idea of an all –India panel, presumably to be prepared by the executive, looks suspiciously like a ruse to restrict the choice of Chief Justices to persons “acceptable” to the executive. Further, it casts an unnecessary and undeserving aspersion on the ability of Chief Justices to select the best men for the post of high court judges.

The Chief Minister’s hope that this decision will help implement the States Reorganisation Commission’s recommendation that one-third of judges in each high court must be recruited from outside the state. The proffered reason is that such a procedure will automatically arrest the growth of parochialism. Quite apart from the fact that this plea implies that high court judges are subject to parochial sentiments, the efficacy of this device is dubious. For one thing, it will further restrict the choice of Chief Justices because, being unfamiliar with the calibre of judicial officers outside their states, they will be forced to rely on the judgment of the executive, which can often be perverse. These innovations on which the Chief Ministers are so very keen have been resisted in the past by the judiciary. The Union Home Minister, for his part, appeared to agree with the Chief Justices when he told the Rajya Sabha early last month why the SRC recommendations with regard to high courts could not be implemented. It is therefore odd that he should now overlook the valid objections of the judiciary and collaborate with the Chief Ministers on a decision which militates against the Constitution.

Jan 16, 1961

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