SUPREME COURT BAR ASSOCIATION Vs. UNION OF INDIA

JUDGEMENT

(1.) This petition under Article 32 of the Constitution of India, 1950 (in short the Constitution) has been filed by the Supreme Court Bar Association raising points of considerable importance. It is the case of the writ petitioner that appointment of a retired Judge as Chairman of the concerned State Legal Service Authority in different States falls foul of the desired legislative effect. It is stated that appointment of retired Judges has the effect of stalling the effectiveness in functioning of the State Legal Service Authorities. With reference to Section 6(2) of the Legal Services Authorities Act, 1987 (in short the Act), it is pointed that the serving or retired Judge of the High Court can be nominated by the Governor in consultation with the Chief Justice of the High Court. The writ petitioner has pointed out that under the Act the State Government is required to constitute a body to be called the Legal Service Authority of the State to exercise the powers and/or assigned to State Authority under the Act. Sub-section (2) of Section 6 provides that the State Authority shall consist of the Chief Justice of the High Court who shall be the Patron-in-Chief and a Judge of the High Court to be nominated by the Governor in consultation of the Chief Justice of High Court who shall be the Executive Chairman.

(2.) Several difficulties encountered in case a retired Judge is appointed as a Chairman, have been highlighted by the writ-petitioner. Most of the States and the Union Territories have accepted the genuineness of the problems highlighted in the writ petition. It is to be noted that except four States i.e West Bengal, Uttar Pradesh, Uttranchal and Manipur, in other States and the Union Territories a sitting Judge is functioning as Executive Chairman. In the State of Orissa prior to passing of the impugned order dated 12.1.2007 a retired Judge had been appointed as the Executive Chairman. In line with the order dated 12.1.2007 presently in the State a retired Judge is functioning as the Executive Chairman. One of the main grievances of the writ petitioner-association is that there is scope for favouritism in case a retired Judge is appointed in preference to a sitting Judge. Several instances have been highlighted. In its affidavit filed by the National Legal Service Authority (in short NALSA), it has been accepted that the functioning of the State Legal Service Authorities where retired Judges have been appointed as Chairman is not satisfactory. The averments in the writ petition which need to be highlighted is as follows:

(3.) It is submitted that even where retired Judges are appointed to head the Commission, it becomes a never-ending process.