New Delhi: The Modi government and the Supreme Court are set to be on a collision course over the recommendations and observations made by the apex court’s collegium regarding the draft memorandum of procedure (MoP) for appointments to higher judiciary. The government is said to have rejected many crucial recommendations.
According to a report in The Indian Express, the transparency in the manner in which the appointments should be carried out – is a major point of contention between the government and the Supreme Court collegium.
The government is of the opinion that the fear of the collegium that a clause in the draft Memorandum of Procedure (MoP), which will allow the government to reject any recommended name on grounds of national security, is unfounded.
The government is planning to refer to the judgement in the Second Judges case of 1993 to emphasise its stand on rejecting recommended names.
The Chief Justice of India TS Thakur had last month conveyed the collegium’s views to the government. He had stated that many of the clauses of the draft MoP finalised by a committee of ministers headed by External Affairs Minister Sushma Swaraj were unacceptable to the collegium.
In 2014, a 5-judge bench of the Supreme Court had declared the National Judicial Appointments Commission (NJAC) Act passed by Parliament as null and void. The bench later directed that a new MoP be finalised by the government in consultation with the CJI, and the work soon began on the same.
The government sent the draft of the MoP to the CJI on March 22 while the CJI returned the same with the views of the collegium on May 23, says the report.
After the collegium rejected many clauses in the MoP, the government is set to take the stand that most of these clauses reflect the spirit of judgments of the Supreme Court in the second, third and fourth (NJAC case) Judges cases.
There are differences between the government and the apex court collegium on the experience and performance of lawyers and judges appointed to the High Courts and apex court. In the case of selection of HC judges, the government wants to focus on 15 years’ record of each sessions judge while considering his case, whereas the Supreme Court feels seniority is more important. For lawyers too, the Centre favours quality of past work as a criterion, whereas the Supreme Court collegium is more in favour of looking at the number of cases he or she has handled.
The other disagreement is about the age bracket for those considered for elevation. While the collegium feels that persons between the age of 44/45 years and 58 years can be considered for elevation, the law ministry is keen that the upper age limit should be pegged at 55 years.
The government is also planning to cite the existing MoP to buttress its case for a more prominent role for the executive in appointing judges. Under the existing MoP, in case the Chief Minister desires to recommend the name of any person, he can forward the same to the Chief Justice for consideration by the collegium. But the Centre is of the view that this provision is currently being ignored.
The government is also going to push the CJI and other members of the collegium to establish a workable and transparent complaint mechanism to deal with complaints against sitting judges. It feels that the current mechanism is shrouded in ‘too much secrecy’.
The collegium has returned the government’s draft, taking the view that it is an attempt by the government to circumvent judicial pronouncements and settled law on appointments in the higher judiciary. After extensive deliberations, CJI Thakur and four senior-most judges of the highest court think the draft is unacceptable in its present form.
