Dimapur, April 25 (MExN): In what could become a fresh issue between the Nagaland Bar Association (NBA) and the Nagaland State Government, the NBA has expressed surprise and dismay over the State Government’s decision “disfavouring” the proposal to establish an All India Judicial Service (AIJS).
“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,” stated the NBA President, Tali Ao, and its Secretary, V Hukavi Zhimomi, in a press release today.
The NBA appealed to the State Government to ‘reconsider and revoke’ the latter’s decision “disfavouring the proposal” to set up an AIJS “in the interest of justice.”
It may be noted that the central law ministry had stated earlier, as per news reports, that State governments of Arunachal Pradesh, Himachal Pradesh, Karnataka, Madhya Pradesh, Meghalaya, Nagaland and Punjab “do not favour formation” of AIJS.
The Centre’s plan to create a national-level judicial service, on the pattern of the All-India Civil Services, has been supported by the Law Commission and a department-related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice has also supported the idea. The NBA has also been on board.
In a representation to the Union law minister in October 2016, the NBA President and Secretary had stated that the selection test for recruitment of candidates for appointments in the higher judiciary ought to be through competitive examination, where all eligible candidates from the legal fraternity are given equal opportunity to apply and to be selected. They had asserted that the present system of nominating and recommending candidates through “pick and choose” practice violates the provisions of Article 14 and 16 of the Constitution of India in as much as no opportunity is given to all the interested eligible candidates from the members of the bar to apply and compete for recruitment on merit.
In the present press release, they have noted that the NBA feels “badly aggrieved” by the response of the Nagaland State to the Indian Union Government.
Meanwhile, the Nagaland legal fraternity was “neither consulted nor informed” by the Nagaland State Government before sending the said response, informed the NBA.
It also remained doubtful if the State Cabinet has passed any resolution to “disfavour” the proposal and whether the Governor has “accorded assent thereto.”
“We are also of the view that 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,” stated the NBA President and Secretary.
According to their legal opinion, under section 3 (30) of the Nagaland Interpretation and General Clauses Act, 1978, the ‘Government of Nagaland’ means the ‘Governor of Nagaland’—therefore, the NBA opined, “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.” This, since the “legal fraternity” has a “pivotal role” to play in the “third organ of the Government.”
The Association cautioned that “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.”
