The Nagaland Bar Association (NBA), through a representation dated 05-09-2016, addressed to the Hon’ble Union Minister of Law and Justice conveyed suggestion for establishment and constitution of National Judicial Service or All India Judicial Service for appointments in the higher judiciary including the Apex Court by selection and recruitment through competitive examination both written test and viva voice. In the representation, the bar expressed dissatisfaction in the present practice of nominating candidates by collegium for appointment of judges in the higher judiciary without any selection test through open competitive examination to be conducted by an independent authority. The bar also expressed lack of justness and fairness in the system as there is no open process and equal opportunity is not afforded to all the illegible members of the legal fraternity which is violative of Article 14 and 16 of the Constitution of India for selection on the basis of merit and fitness adjudged through open competitive examination. The bar conveyed the view that law of the nature like the NJAC Act, 2013 struck down by the Hon’ble Supreme Court or the MOP proposed by the Union Government however rejected by the Hon’ble Supreme Court as well as the present system of appointments on nomination by the collegium directly or indirectly offends the independence of judiciary besides being violative of Article 14 and 16 of the Constitution.
The representation of the NBA was promptly responded by the Union Law Ministry, vide Office Memorandum dated 27-12-2016 issued by the Under Secretary Union Government of India, Ministry of Law and Justice. So also, similar to the suggestions tendered by the NBA, the Union Law Commission also recommended for establishment of All India Judicial Service on all India basis which may be regarded as the rightful direction for revamping the system in the appointments of judges in the higher judiciary.
However, we are surprised and highly dismayed to know that the Nagaland State Government has responded to the Union Government disfavouring the proposal for establishments of All India Judicial Service. It is highly debatable as to what is the rationale behind the view tendered by the State Government disfavouring the proposal of the Union Government as recommended by the Union Law Commission which is almost similar to the demands of the NBA for revamping the system of appointments of judges in the higher judiciary. We feel badly aggrieved by the response of the State to the Union Government in as much as the subject matter is a concerned to the legal fraternity where we have a right of say, however, the State Government neither consulted nor even informed the legal fraternity before responding to the Union Government. We are also doubtful as to whether the State Cabinet has passed any resolution to disfavour the proposal of Union Government and whether the Governor has accorded assent thereto. We are also of the view that the subject matter being concerned for revamping the system of appointments in the third organ of the Government, the matter may require serious debate at appropriate level of the Government taking into consideration the views and opinion of the legal fraternity. Legally speaking, under Section 3 (30) of the Nagaland Interpretation and General Clauses Act, 1978, the ‘Government of Nagaland’ means the ‘Governor of Nagaland.’ Therefore, if the response to the Union Government was on the decision of the State Government at appropriate level, the matter should have been brought to the notice of the public or at least to the notice of the legal fraternity. So to say, the matter solely pertains to the third organ of the Government where the legal fraternity has a pivotal role to play. Therefore, in all justness and fairness, the State Government should not have ignored the legal fraternity before making such decision.
It is our open appeal to the State Government that in the interest of justice, the decision of the State Government disfavouring the proposal of’ the Union Government to establish All India Judicial Service which concurs with the representation of the state legal fraternity submitted to the Hon’ble Union Minister of Law and Justice should be reconsidered and revoked. On the other hand, if the opinion of the State Government tendered to the Union Government lacks Constitutional propriety, say, without the State Cabinet decision and/or without the assent of the Governor, the competent authority of the Government may issue appropriate orders to the notice of the Union Government as well as the legal fraternity in the State being the same would be a serious case of abuse of powers or illegal assumption of authority. We have complete faith and reliance on the sanctity and propriety of the Constitutional and legal authority of Raj Bhavan, Kohima to do justice to the legal fraternity.
Since the matter has been brought to the public domain by publication in print media, we are compelled to go to the print media in public interest more particularly the legal fraternity demanding the State Government to disclose the matter at the earliest.
