July 16th, 2008 - 11:05 pm ICT by IANS
New Delhi, July 16 (IANS): The government Thursday defended the successive chief justices’ practice of not consulting their two senior-most colleagues while making high courts’ additional judges permanent.
Additional Solicitor general Gopal Subramanian defended the practice, saying the successive chief justices, satisfied with the suitability of a candidate at the time of his appointment as an additional judge of the high court, might not have considered it necessary to have elaborate consultation while making his services permanent.
It appears to the government that once being satisfied that the suitable candidate was, in fact, being appointed as an additional judge of the high court, elaborate consultations while confirming the appointment of an additional judge as a permanent judge may not have been considered necessary," said Subramanian in a written submission.
The government’s law officer made the written submission to the bench of Justice Arijit Pasayat, during the hearing of a petition questioning the appointment of Justice Ashok Kumar of the Madras High Court.
Subramanian defended the practice despite noting elsewhere in his submission that as per the rules and regulations, the procedure for appointment of additional judges and subsequently making them permanent is same and includes elaborate consultation by the chief justices with his two senior-most colleagues.
"It is also provided that the procedure to be followed for making the appointment (of additional judges of the high court) would be the same as those for the appointment of a permanent judge," he said.
Former law minister and senior advocate Shanti Bhushan has questioned the appointment of Justice Ashok Kumar, alleging that there were adverse intelligence reports against him which made him ineligible for appointment as a high court judge.
In his petition, Bhushan has also alleged that apart from being appointed as additional judge, he was subsequently made permanent as well in 2005, despite having "adverse intelligence input" against him.
Bushan has also contended that Justice Kumar was made permanent by present Chief Justice of India (CJI) K.G. Balakrishnan though erstwhile apex court’s collegium, headed by former CJI Y.K. Sabharwal and R.S. Lahoti had serious reservation about confirming the services of Justice Kumar.
Taking note of the serious allegation, Justice Arijit Pasayat last August sought an elaborate affidavit from the government, detailing the exact number of high court judges made permanent since 1999 on the successive chief justices’ recommendations alone and on those endorsed by the collegium.
The government in its affidavit told the court that a total of 351 additional judges of various high courts were made permanent between January 1999 and 2007 by successive chief justices and in no case did the chief justice ever consult the collegium.
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Also read the related stories in THE HINDU as follows:
New Delhi: The Centre on Wednesday maintained in the Supreme Court that in appointing an additional judge of a High Court as permanent judge, the collegium of the Chief Justice of India and two other judges would take into account the views of the Chief Justice of the High Court concerned and those judges of the High Court whom he had been consulted.
The Centre made this submission before a Bench of Justices Arijit Pasayat and M.K. Sharma hearing a petition filed by the former Union Law Minister, Shanthi Bhushan, and advocate Kamini Jaiswal challenging the appointment of Justice Ashok Kumar, Judge of the Andhra Pradesh High court. Earlier, Justice Ashok Kumar was in the Madras High Court.
The Bench, after hearing senior counsel Anil Divan and Additional Solicitor-General Gopal Subramaniam for the Centre directed the matter to be listed for final hearing on September 16.
Mr. Divan submitted that the Government of India should be directed to strictly follow its own Memorandum of Procedure (MoP) in regard to future appointments of permanent judges of High Courts, particularly those relating to appointments of additional judges. He said if the procedure was not followed such appointments should be treated as void.
The Centre in its affidavit quoting earlier Supreme Court judgments said as per the Memorandum of Procedure evolved as per the judgments, the Chief Justice of the High Court must consult two seniormost colleagues on the Bench and forward the same to the Chief Minister along with the recommendations.
The Chief Justice, while sending his recommendations for appointing an additional judge as a permanent judge, would need to furnish statistics of month-wise disposal of cases and judgments (of the judge concerned).
A copy of the advice of the Chief Minister would be endorsed to the Chief Justice of India and the Union Law Minister to expedite consideration.
The MoP prescribes that the Law Minister would consider the recommendations in the light of such other reports as might be available to the government in respect of the names under Consideration and forward the same to the CJI for his advice.
The Centre, however, said: “From January 1, 1999 to July 31, 2007, a total of 351 Additional Judges were appointed as permanent judges; that in these cases the Supreme Court collegium was not consulted. The records indicate that successive CJIs have not consulted the collegium while considering the cases of appointment of additional judges as permanent judges.”
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