SRINAGAR: The Jammu and Kashmir government has opposed the Centralised Selection Mechanism (CSM) for appointments in the subordinate judiciary, citing the reason that the state enjoys special status under the Constitution of India.
The Supreme Court of India had sent a concept note to all states with a proposal for a Centralised Selection Mechanism for appointment of Judicial Officers in subordinate courts, and had sought suggestions from all the states.
As the case involved the interpretation of the Constitution, J&K Government hired the services of Rakesh Dwivedi, senior advocate, in addition to Shoeb Alam, Advocate-on-Record, to defend the state.
The state government filed a detailed affidavit highlighting the constitutional peculiarity before the apex court.
The counsels appearing on behalf of Jammu and Kashmir submitted before the Supreme Court that centralising the selection process for District Judges would not be in consonance with the constitutional position enjoyed by the state of J&K, as this power was with the Governor of the state in consultation with the state High Court. This was different from other states of the country where appointments were made under Article 233 of the Constitution of India.
“Appointment of District Judges is a Constitutional power vested with the Governor to be exercised in consultation with the State High Court. Thus this power cannot be taken away or abridged by exercise of judicial powers by court,” the J&K counsel argued.
The JK government said that the High Court in J&K exercises greater independence than the High Courts of other states, as the entire state judiciary is constituted not under the Constitution of India but under the constitution of J&K.
The counsel stated that the proposed CSM would require J&K to recruit candidates from a centralised pool of candidates, but J&K cannot appoint non-permanent residents. The eligibility criteria for district judges of J&K is prescribed under the Jammu and Kashmir Judicial Services, Rule 9, whereof no person shall be eligible for appointment to the service unless she or he is a permanent resident of J&K state.
The counsel said that the scope of Article 312 of the Constitution of India relating to the All India Services has been extended to the creation of an All India Judicial Service by 42nd amendment Act 1976, but the amendment has not been extended to the state of J&K.
After hearing the counsel, the Supreme Court bench of Chief Justice JS Khehar, Justices Adarsh Kumar Goel and AM Khanwilka said that a revised concept note will be prepared and sent to High Courts of the objecting states, giving them the option to opt out of the CSM.