DIMAPUR, OCTOBER 13 (MExN): The Nagaland Bar Association (NBA) on Thursday urged the Union Minister of Law and Justice, Ministry of Law and Justice for establishment and constitution of National Judicial Service and National Judicial Commission in the context of the current scenario on appointment of judges in the highest courts.
In a representation addressed to the Union Minister of Law and Justice, Ravi Shankar Prasad, NBA president, Tali Ao and secretary V Hukavi Zhimomi, maintained 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.
Also pointing out that in the appointments in subordinate judiciary in the states; the recruitments are made through selection on competitive examination by inviting applications from all over the country, the Association, however termed it as “absurd” that the nomination, selection and recommendation for appointment in higher judiciary is confined only to the territorial jurisdiction of the particular High Court.
The National Judicial Commission is a body proposed to replace the present Collegium System of appointing judges. The collegium system is one where the Chief Justice of India and a forum of four senior-most judges of the Supreme Court recommend appointments and transfers of judges.
The Association asserted that the present practice of Collegium System in 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.
It explained- “to secure the independence of the judiciary, the recruiting authority should be independent of any control by the executive as well as by any others holding post howsoever high it may be.”
The Association reminded that the Parliamentary supremacy enshrined under Article 368 of the Constitution “shall salvage the authority of the government to make necessary amendments to the Constitution as to make provisions to uphold Article 14 and 16 in the matter of appointments of the higher judiciary.
It therefore stated that the National Judicial Appointments Commission (NJAC) Act, 2013 which was struck down by the Supreme Court or the present collegiums system appears to be in total curtailment of the provisions of Article 14 and 16 of the Constitution and that “both the system may directly or indirectly offend the independence of judiciary.”
Uniform Civil Code will cause hardship & social disorder to Nagas
Meanwhile, the NBA, in a separate memorandum addressed to the Prime Minister of India, has appealed for retention of the provisions of Article 371A in the event of any such law of Uniform Civil Code is introduced.
Uniform civil code is the proposal to replace the personal laws based on the scriptures and customs of each major religious community in India with a common set governing every citizen. These laws are distinguished from public law and cover marriage, divorce, inheritance, adoption and maintenance.
“That if the Uniform Civil Code is introduced covering the entire country, it shall cause so much hardship and social disorder to the Nagas as the personal and social life of the Nagas are quite distinct from the rest of the people in the country,” the memorandum apprehended.
The Association pointed out that the un-codified customary practices and usages right mostly governs the personal and social lives of the Nagas since time immemorial and “there is no occasion in the judicial history wherein any of these traditional customs, practices and usages have been held or struck down as opposed to law.”
“Thus, the Nagas continue to remain in absolute contentment with the present status as protected under the Constitution,” the Association asserted in the memorandum.
