Apex court to hear petition that faults own Chief Justice

NEW DELHI: An unique petition is expected to be heard shortly by the Supreme Court in which serving Chief Justice K.G. Balakrishnan has been accused of wrongly confirming the services of a Madras High Court judge without seeking the advice of a collegium of senior judges.

In an affidavit to be filed soon, the central government is all set to defend the chief justice and tell the apex court he committed no wrong in confirming the services of Madras High Court's Additional Judge S. Ashok Kumar, who is alleged to be of doubtful integrity, senior law ministry officials said.

The affidavit is also expected to assert that while the chief justice needs to consult the collegium to "extend" the services of the same additional judge, he need not do so in the matter of "confirming" him as a full-fledged additional judge.

Law ministry officials said the affidavit has been prepared by the Department of Justice and is currently being examined by senior officials.

"The Department of Justice came to the conclusion after examining over 300 cases of appointment of additional judges in high courts and subsequent confirmation of their services as full-fledged judges over the past five years," an official said.

The affidavit is to be filed in response to an apex court directive to the government following a petition by former law minister Shanti Bhushan, who has accused the chief justice of wrongdoing in judicial appointment.
 
Bhushan has 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.

The bench of Justice Arijit Pasayat and Justice D.K. Jain had July 30 sought the government's elaborate affidavit within six weeks, detailing separately the number of additional high court judges made permanent since 1991 on the recommendations of the chief justice of India alone, as also on the joint recommendations of the apex court collegium.

The government's affidavit is to 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, non-joinder implies not making the relevant and necessary party the respondent in the petition, while mis-joinder implies making a wrong and irrelevant party the respondent.

These defects render the petition liable to be dismissed by the court.
 
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 by not doing so, the petition suffers from the defect of non-joinder.
 
Similarly, in the judicial appointments, the union government does not have any effective role and it merely implements the decision of the chief justice. But, the petitioner has chosen to make the government - an unnecessary and irrelevant party - as the respondent, they said, adding this left the petition suffering from defects of mis-joinder.

Justice Kumar, who was appointed as an additional judge of the Madras High Court in April 2003, was confirmed Feb 7, this year, after a gap of three years and 10 months.

Bhushan's petition said that while making his recommendation for confirmation of Justice Kumar, the chief justice neither consulted the apex court collegium comprising its two senior most judges, nor any other apex court judge having the knowledge of the Madras High court.

These norms and laws have been laid down by various rulings of the apex court on the appointment of judges in the higher judiciary, Bhushan said in his petition.

Additional judges of the high courts are initially appointed for a period of two years after which they are made permanent judges.

Earlier in August 2005, the apex court collegium comprising former chief justice R.C. Lahoti and its two senior most judges Y.K. Sabharwal and Ruma Pal had refused to recommend Justice Kumar's confirmation owing to certain adverse (intelligence) reports against him, Bhushan said.