The Parliamentary Standing Committee on law and justice noted on Thursday that the government may assume a “veto power” and reject any name recommended by the Supreme Court collegium for appointment as a judge if it succeeds in inserting clauses of “national security” and “larger public interests” in the proposed Memorandum of Procedure (MoP).
Raising the red flag amid an ongoing tussle between the executive and the judiciary over appointment of judges, the panel said that the government’s insistence on adding stipulations of “national security” and “larger public interests” gave rise to serious apprehensions regarding the finalisation of the revised MoP, which would guide all future appointments.
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“The Committee apprehends that the government may reject any name duly approved by the Supreme Court collegium under the veil of those parameters. This would tantamount to giving veto power to the government, which is not the mandate of the Constitution,” stated the 87th report of the parliamentary standing committee that was examining reasons for delay in judges’ appointments.
In making such observations, the panel, chaired by Congress leader Anand Sharma, has concurred with the views of Chief Justice of India T S Thakur and the SC collegium, which has rejected the government’s proposal to empower it to trash any recommendation on these grounds.
The panel, in its report, has recommended that the terms “national security” and “larger public interests” should be defined in unambiguous terms along with listing circumstances and situations that would come within the purview of these two clauses.
It also underlined the delay on the part of the government in processing the names recommended by collegium in high courts and the Supreme Court for appointments as judges. According to the information adduced before the panel by the Department of Justice on November 29, the government has in some cases taken even 11 months to forward the names to the Supreme Court collegium.
The panel also said that the collegium, too, in high courts and in the Supreme Court, have also delayed in making recommendations in time which has often resulted in the clubbing of vacancies arising over a number of years. The Committee recommended that an institutional mechanism, preferably a dedicated Cell in the court registry, be put in place to adhere to timelines for filling up vacancies.
The panel recommended increasing the retirement age of judges of the Supreme Court from 65 to 67, and of high court judges from 62 to 65. Besides, it said that the Chief Justice of India as well as chief justices of high courts should have a minimum tenure after noting that collegium, in several instances, had become dysfunctional due to retirement or elevation of the chief justice and failed to initiate process for filling up vacancies.
Since 1997, out of 17 CJIs, only three had a tenure of more than two years. Former CJI S Rajendra Babu had a tenure of less than a month.
Describing judicial appointments as a shared responsibility of the executive and the judiciary, the panel urged both the institutions to resolve their differences quickly in public interest and finalise the MoP so that appointments go through.
The panel found fault with a five-judge bench quashing the 99th constitutional amendment and the National Judicial Appointments Commission (NJAC). It said that all cases involving questions on validity of constitutional amendments should be heard by a bench comprising not less than 11 judges while a bench having at least seven judges should hear other matters relating to constitutional provisions.
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