By Rana Ajit, IANS
New Delhi : The central government is all set to defend Supreme Court Chief Justice K.G. Balakrishnan against a petition that accuses him of wrongly confirming the services of a Madras High Court judge without consulting the collegium of apex court judges.
In its affidavit, to be filed shortly in response to a petition by former Law Minister Shanti Bhushan, the central government will tell the apex court that the chief justice committed no wrong in confirming the services of Madras High Court Additional Judge S. Ashok Kumar in Fenruary, senior law ministry officials said.
“The affidavit will assert that while the chief justice needs to consult the collegium to extend the services of an additional judge, he need not do so in the matter of confirming him as a full-fledged additional judge,” a senior law ministry official said.
The officials said the affidavit has been prepared by the Department of Justice and is currently being examined by senior officials.
“The Department of Justice arrived at their conclusion for the argument after examining over 300 cases of appointment of additional judges in high courts and subsequent confirmation of their services as full-fledged judges in the past five years,” the official said.
On July 30, a bench of Justices Arijit Pasayat and D.K. Jain had on the petition by Bhushan asked the government to file an elaborate affidavit within six weeks, detailing separately the number of additional high court judges made permanent since 1991 on the recommendations of the CJI alone, as also on the joint recommendations of the apex court collegium.
Bhushan, in his petition, had contended that the chief justice, in recommending that the central government confirm the services of Justice Kumar, deviated from the “norms and requirement of the consultation process” with fellow apex court judges.
Justice Kumar, who was first appointed an additional judge of the Madras High Court in April 2003, was confirmed as the high court judge on Feb 7 this year, after a gap of three years and 10 months.
Additional judges of the high courts are initially appointed for a period of two years after which they are made permanent judges.
Bhushan had told the apex court that in August 2005, the apex court collegium comprising former chief justice R.C. Lahoti and two senior most judges Y.K. Sabharwal and Ruma Pal had refused to recommend Justice Kumar’s confirmation due to certain adverse (intelligence) reports against him.
Bhushan contended that CJI Balakrishnan did not consult fellow judges of the apex court, despite earlier rulings on appointments in higher judiciary making it mandatory for consultation before any appointments, extensions or confirmations.
The government’s affidavit, however, will seek the dismissal of Shanti Bhushan’s petition terming it as “devoid of merit” and liable to be dismissed for being inflicted with “the legal defects of non-joinder and mis-joinder”, officials said.
According to the Civil Procedure Code (CPC), non-joinder implies not making the relevant and necessary party (the CJI) the respondent in the petition, while mis-joinder implies making a wrong and irrelevant party (government) the respondent. As per the provisions of the CPC, these defects render the petition liable to be dismissed by the court, the ministry officials said.
The ministry officials said Shanti Bhushan’s petition is prima facie against the chief justice and he should have been made the respondent in the petition. But he has not done so, making the petition suffer from the legal defect of non-joinder.
Similarly, the union government does not have any effective role in judicial appointment and merely implements the decision of the chief justice. But, Bhushan has chosen to make the government, which is an unnecessary and irrelevant party, as the respondent, making the petition suffer from the defect of mis-joinder, they pointed out.