Kerala High Court’s Justice Kemal Pasha, who retired on Thursday, hit out at the Collegium with regard to the appointment of judges, saying that "incompetent" members were being elevated to the posts of judges.
Justice Kemal Pasha, who became a HC judge in 2013, made the remark in his farewell speech in Kochi.
He said that the "appointment of the judges is not the family property of someone to be partitioned," adding that some of the members of the Bar, who are being recommended for elevation, lack the capacity to hold the post.
"I do not believe that judgeship should be allotted to each and every religion, caste or sub-caste. I learn from the media that some names from the Bar have been recommended for elevation. If the names given by the media are correct, I can very well say that most of the judges of this court, including me, have not had the good fortune to see even the faces of some of those persons. Is it good for the judiciary? Competent lawyers eligible to be elevated are there among the members of the Bar. To pick and choose some persons who are not at all competent to be judges and to recommend them for elevation will point fingers towards the system," Justice Pasha said.
Saying that a judge is the minister of justice and that the duty to impart justice was a "divine function", he added:
"When persons who have to perform this divine function are to be selected, they should have the capacity for it."
Justice Kemal Pasha also said that the glory achieved by the court in the past decades "by the hard work of the judges of this court and this elite Bar, has been considerably diminished due to some recent incidents", but he did not elaborate on them.
However, he urged the members of the bar to take up "such issues" and react to it. He shared the incident when the Bombay Bar had come down heavily when they realised certain judges were corrupt. When the members of the Bar react to such issues, there will be a "cleansing effect", the Justice added.
Further, Justice Kemal Pasha opined that judges should not accept post-retirement jobs from the government for at least a period of three years. He also spoke of the dangers when a sitting judge expects a salaried post-retirement job from the government.
"The government is the major litigant before the courts of law, especially before the High Court. When a judge is expecting a post-retirement job from the government, he will be in a position not to invite displeasure from the government, at least in the year of his retirement. There is a common complaint that such judges are not dared to invite displeasure from the government by expecting such post-retirement jobs. I believe the words of Hon'ble Justice SH Kapadia and Justice TS Thakur that any judge shall not accept any salaried job under the government, at least for a cooling period of three years from his/her retirement," he said.
In an interview to Manorama News later, Justice Pasha explained that suddenly changing the jurisdiction of judges who are hearing important cases, is likely to raise suspicions in the minds of people.
Justice Pasha's jurisdiction was later changed after his order asking for an FIR to be registered against the Cardinal. In an interview with The New Indian Express, Justice Pasha said that the change of jurisdiction was indeed untimely.
"It’s true there was an unprecedented mid-term shift of my jurisdiction. The convention of this court was to have normal changes in the jurisdiction of judges on the penultimate date of a term, which will take effect on the reopening day. Normally, a judge will be dealing with his jurisdiction for a full term. I’ve no direct evidence to say the untimely change was because of the said cases (Syro Malabar). However, when the public is entertaining such a view, one can’t find fault with them considering the circumstances," he was quoted as saying.
Bar and Bench reports that Justice Pasha enrolled as an advocate and started to practice in 1979. He was Appointed as Second Additional District and Sessions Judge in Ernakulam in the year 1995.