Harish Salve appears for Madhya Pradesh, “Rises above brief” in support of Central Selection Mechanism

Senior Advocate Harish Salve entered appearance today in the case relating to Central Selection Mechanism for subordinate judiciary.

Appearing on behalf of Madhya Pradesh High Court and State of Madhya Pradesh, Salve argued in favour of having a Central Selection Mechanism before the 3-judge Bench of Chief Justice JS Khehar and Justices AK Goel and AM Khanwilkar, which is hearing the matter.

However, what is surprising is that the affidavits filed by the State of Madhya Pradesh and the Madhya Pradesh High Court have stated that the proposal to have Central Selection Mechanism will run contrary to Article 233 of the Constitution of India.

Salve, it seems “rose above his brief” while arguing the case.

The same was also tweeted by Senior Advocate Jaideep Gupta, who is appearing for Calcutta High Court in the matter and arguing against the proposal.

Meanwhile, Gauhati High Court joined Calcutta High Court and State of West Bengal in opposing the proposal for Central Selection Mechanism arguing that the same is unconstitutional.

Excerpts from today’s hearing are given below.

Jaideep Gupta for Calcutta High Court

State of West Bengal and Calcutta High Court have remained steadfast in their opposition to the proposal.

Senior advocate Jaideep Gupta is appearing for Calcutta High Court along with Advocate-on-Record Kunal Chatterjee and advocates Maitrayee Banerjee, Rudrajyoti Nath Ray, Saurav Gupta and Anindita Mitra.

Gupta resumed his arguments from where he had left on Friday.

He submitted that Articles 233, 234 and 235 are part of the Basic Structure and cannot be impinged.

He also stressed upon the independence of State Judiciary as envisaged by the Constitution stating that Union Judiciary and State Judiciary are dealt with in different chapters in the Constitution.

“The Constitutional mandate (for appointing District judges) is solely in favour of the concerned High Court. To include High Courts of other States or the Supreme Court in that process will make it unconstitutional.”

He argued that the Selection Committee envisaged currently in the case will have individuals who should not be consulted.

“As per the negative aspect of Article 233, only the High Court can be consulted. Inclusion of the Supreme Court and other High Courts is disallowed under article 233.”

Gupta also said that allowing High Court to make appointment after the selection committee has selected the candidates will render the High Court’s task an empty formality.

“If the High Court is not allowed to participate in the selection but is later allowed to participate in the appointment, then that is an empty formality.”

Responding to the Bench’s query regarding mounting arrears and the need to address the same by timely appointments, Gupta stated,

“This has been put forth as a mechanism by which arrears can be tackled. It needs to be tacked no doubt. But that can be done in many ways.  It is best to avoid doing it by putting a gaping hole in Article 233.

Today, if the mechanism to tackle arrears affects the independence of judiciary and federalism, we never know where it could take us.”

Gupta concluded by expressing belief that the Court will not venture into doing something which might adversely affect the independence of State judiciary.

“The legacy of this court has been to uphold the independence not only of this court but also of the State Judiciary. I believe Your Lordships will uphold that legacy.”

Harish Salve for State of Madhya Pradesh and Madhya Pradesh High Court

Salve’s arguments were grounded on the premise that the proposed Central Selection Mechanism will not affect High Court’s powers under Article 233.

“I believe the Central Selection Mechanism will assist the High Courts for selection, not overtake it. The High Courts will retain the right to reject any candidate. As long as the sanctity of the High Courts is preserved, there is nothing wrong.”

Salve submitted that independence of judiciary is part of Basic Structure and cannot be diluted and addressing the woes plaguing the judicial system is essential.

“There are certain aspects of the Constitution which cannot be diluted. Independence of judiciary is one of those aspects. As long as the core [of High Court’s powers] is maintained, High Courts shall have the last word”, he argued.

Senior advocate Vijay Hansaria for Gauhati High Court

Hansaria began his submissions by stating that there has been no effective consultation with the High Courts so far.

CJI Khehar immediately interjected by stating that Chief Justices of all High Courts were taken into confidence at the conference [held on April 8].

Senior advocate Jaideep Gupta, however, intervened and stated that he has been specifically instructed to the contrary.

“Your Chief Justice was very much present. You can ask her”, responded Khehar J.

“This is a non-issue”, said Harish Salve.

“This is not a non-issue. In any case, the Full Court [of Calcutta High Court] has rejected the proposal”, replied Gupta.

Hansaria then continued with his arguments submitting that the Central Selection Mechanism will take away the powers of the High Courts with respect to selection to subordinate judiciary.

“Selection Committee will prescribe syllabus, conduct the exam, interview the candidates and select them, High Court will not have a say in any of these as per the Concept Note”, he submitted.

The hearing will resume tomorrow at 12 pm and is likely to conclude tomorrow.

HT to Advocate Rudrajyoti Nath Ray for affidavits.

Read the affidavit filed by State of Madhya Pradesh.

Affidavit filed by Madhya Pradesh High Court.

Affidavit filed by State of West Bengal.

Affidavits filed by Calcutta High Court.

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