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Earlier this month, when the Supreme Court collegium, headed by Chief Justice of India J S Khehar, rejected the Centre’s recommendation that the government should have the power to reject any name for appointment as a judge of the high court for reasons of “national security”, it followed in the footsteps of former CJI T S Thakur who had rejected such a veto in the proposed Memorandum of Procedure (MoP).
It is now learnt that the reason why the Supreme Court collegium, under Justice Thakur and now CJI Khehar, took this stand is because the government said if it rejects a candidate on grounds of national security, it will not give in writing the evidence that forms the basis of its decision.
Sources said the government is not inclined to share the evidence in writing because that can also adversely impact the candidate’s standing as a lawyer. The government, sources said, is not averse to the idea of showing the evidence to the CJI who can then inform his collegium colleagues. But CJI Khehar, like Justice Thakur, is not ready to accept this, sources said.
The judiciary has had several rounds of “informal” discussions with senior government functionaries but is not convinced with the government’s reasoning.
The collegium is of the view that making recommendations is a collective decision of the entire collegium and all members should be aware of the entire material about a candidate before making an informed choice. The collegium, sources said, is also of the view that if the government gives the reasons in writing, the charge can be verified through independent sources.
Letting the government impact the appointment process through the national security clause without giving in writing the grounds will only mean handing over the veto to the government.
Incidentally, to convince the collegium to accept the national security clause, the government has said it has so far not rejected any recommendation on national security grounds. It has assured the collegium that in future too, the clause will be invoked sparingly.