CITING special status enjoyed by it under the Constitution of India, the Jammu Kashmir government has opposed the Centralized Selection Mechanism (CSM) for the appointment of judges in subordinate judiciary in the state.
Giving details, an official release here said that the Supreme Court of India had sent a concept note to all the states with a proposal for a CSM for appointment of judicial officers in subordinate courts in the states and had sought suggestions from them. Since the case involved interpretation of the Constitution, the government hired the services of Rakesh Dwivedi, a senior advocate in addition to Shoebv Alam, advocate on record, who submitted before the Apex Court that centralizing the selection process for appointment of district judges would not be in consonance with constitutional position enjoyed by the state as in accordance with Section 109 of the Constitution of Jammu and Kashmir, power to appoint them vests with the State Governor in consultation with the State High Court.
Pointing out that this power cannot be taken away or abridged by the exercise of judicial powers by court, they argued that high court of the state exercised greater independence than high courts of other states as the entire state judiciary including high court and the subordinate courts are not constituted under Constitution of India, but under the Constitution of Jammu and Kashmir. As such the appointment of judges of the Jammu Kashmir High Court and the district judges take place under the Constitution of the State.
While the proposed CSM will require Jammu Kashmir State to recruit candidates from the centralized pool of successful candidates, it cannot appoint non-permanent resident candidates to the post. Moreover, 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 and the said amendment has not been extended to the state of J&K, they added. They stated that the state enjoys special relationship unlike other states in the union of India inter alia by virtue of Articles 370 of Constitution of India which is applicable to the state only to the extent it is applied to the state by the exercise of presidential power in terms of Article 370 of Constitution of India.
After hearing the response from the J&K state, Apex Court bench comprising Chief Justice J S Khehar, Justices Adarsh Kumar Goel and A M Khanwilka said a revised concept note will be prepared so that it will be circulated to High Courts of objecting states so that they may be given the option to opt out of the CSM.