Chief Justice Sinha wants 'dual rule' clause of Constitution replaced by earlier form

As the Supreme Court does not solely hold the power to promote or transfer subordinate court judges, a system of 'dual rule' has been created, Chief Justice Surendra Kumar Sinha has said.

He has sought substitution for Section 116 of the Constitution by the related section from the 1972 charter, holding it responsible for the 'dual rule'.

The chief justice made the demand in a message to mark the ninth anniversary of the separation of the judiciary on Monday.  

 In his message, Justice Sinha said Section 109 of the Constitution says High Court will supervise and control all the subordinate courts.

"But the rule stipulated by Section 116 is one of the main reasons behind the sluggishness of the judiciary," Justice Sinha said.  

"It has not been possible for the Supreme Court alone to supervise promotions, transfers and disciplinary activities of the subordinate court judges. It has not been possible to appoint judges in vacant posts in many districts in time owing to this dual rule.

"It disrupts trials, leading to sufferings for people seeking justice," he said.    

Therefore, the chief justice said, it was a 'demand of the time' to bring back Section 116 as it was in the 1972 Constitution. 

"It clearly stated that 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 and be exercised by the Supreme Court," Justice Sinha said.

"Reintroducing that section will further uphold and strengthen the freedom of the judiciary and add a new dimension to the judiciary's overall development," he added. 

Section 116 of the Constitution was amended by the regime of military ruler Ziaur Rahman in 1978 to vest powers of control of the judiciary in the hands of the president.

The Supreme Court has already declared illegal the Fifth Amendment to the Constitution. Through the amendment, all orders, announcements and penalties imposed during the period of military rule after the imposition of martial law following the assassination of Bangabandhu on Aug 15 1975 had been given legal sanction.

The Awami League-led coalition government restored the four fundamental principles of the Constitution in 2011 but did not bring back the old Section 116.

The amended Section 116 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.]"