Law minister Anisul Huq claimed yesterday that the publication of the gazette notification on the disciplinary rules for lower court judges have increased the Supreme Court's powers. “The power of the Supreme Court has not decreased. Rather, it has increased after the publication of the gazette notification. The notification mentions that if the Supreme Court’s proposal does not match that of the President and law ministry, the Supreme Court’s proposal would hold,” the law minister argued. He was talking to reporters at his office in the secretariat. The government on Monday issued the much-talked-about gazette notification, keeping intact the President’s authority in controlling the lower judiciary. The law minister said that those who were criticizing the gazette notification were doing so as it had foiled their plans.

“Many have played football with the Constitution from 1976 to 1996. But no one can do that from now,” the law minister said. Replying to a query, the law minister said the notification was finalized in consultation with the Supreme Court judges. “We published it only after getting the final nod from the apex court judges. So, there is no problem between the Supreme Court and the law ministry in the matter. Some people are criticizing it without understanding the issue properly,” Huq noted.

“The gazette notification has been prepared in line with Article 116 of the Constitution. The President will consult the Supreme Court while taking action against lower court judges. The disciplinary rules have been prepared to protect Article 116 of the Constitution,” the law minister said.

Article 116 of the Constitution, says, “The control (including the power of posting, promotion and grant of leave) and discipline of persons employed in the judicial service and magistrates exercising judicial functions shall vest in the President and shall be exercised by him in consultation with the Supreme Court.”

In response to a query whether former Chief Justice S K Sinha had put a spanner in the works, the law minister said that he “did not want to go back” on that.

“I just want to say that we had an argument with him on Article 96 of the 16th amendment to the Constitution case. The argument was not about Article 116 of the Constitution. But, former Chief Justice S K Sinha had made Article 116 ultra vires the Constitution with the 16th amendment case judgement. Now, you (journalists) can understand what obstacle the former chief justice had created,” the law minister said.

In response to another query, he said that they would not go beyond the Constitution in appointing the chief justice.

Attorney general Mahbubey Alam told the media that there was no obstacle to taking disciplinary or departmental action against lower court judges following the gazette notification.

However, barrister M Amir-ul Islam, counsel in the Masder Hossain case, popularly known as the ‘judiciary separation case’, told reporters that the gazette notification had not been issued in line with the Supreme Court verdict in the Masder Hossain case. “The gazette notification has been issued under Article 133 of the Constitution. But it should have been issued under Article 116 of the Constitution. The gazette notification does not reflect the Masder Hossain case verdict properly,” he argued.

On December 2, 1999, the Supreme Court issued a seven-point directive in the Masdar Hossain case, including the formulation of separate disciplinary rules for lower court judges.

Following the Masder Hossain case, the judiciary was officially separated from the executive in November 2007. But, the finalization of the draft got delayed during the tenure of former Chief Justice S K Sinha, who made many angry remarks over the matter. The rules are meant to streamline the judiciary after its separation from the executive.