The draft Memorandum of Procedure which would laydown the broad framework to facilitate appointment of Supreme Court and High Court judges by the collegium, has reached the Prime Minister’s Office for approval before being handed over to the CJI.
The NDA government wants both the Centre and state governments to have say in recommending candidates for appointment to the higher judiciary.
The revised draft memorandum of procedure (MoP), which was recently approved by an inter-ministerial group, has been sent to the Prime Minister’s Office by the Law Ministry for final clearance. It would then be sent to the Chief Justice of India for final approval, sources said.
While delivering its verdict on ways to make the collegium system more transparent, the apex court had asked the government to rework the MoP in consultation with the states and high courts.
The draft MoP, which guides the collegium in the appointment of judges, suggests that the Attorney General at the Centre and Advocates General in the states should have a say in recommending candidates for appointment and elevation of judges of the Supreme Court and high courts.
If the Supreme Court accepts the draft, then effectively the government can also suggest candidates as the AG is the top law officer appointed by the government.
In the appointment of judges to the high court, all the high court judges as well as the respective Advocates General of the state will be free to recommend their candidates, the draft says. That would mean that the state governments can also recommend candidates through their Advocates General.
While the draft MoP has been finalised by an inter- ministerial group headed by External Affairs Minister Sushma Swaraj, it is likely to undergo changes before being sent to the Chief Justice of India for approval.
The draft also states that any dissent note to a recommendation of the collegium to appoint or elevate a judge should be mandatorily shared with the Executive.
This point has been incorporated based on the judgement the Supreme Court delivered last year on ways to make the collegium system more transparent.
The draft also says that up to three judges in the Supreme Court should be from the Bar.
The government has decided not to bring the collegium appointments under RTI’s ambit as it apprehends it could lead to a flood of applications from aspirants and “interested parties” seeking file notings and other details.
According to the draft MoP, evaluation of judgements delivered by a high court judge during the last five years and initiatives undertaken for improvement of judicial administration should be the yardstick for promotion as chief justice of a high court. At the same time, it also suggests that seniority should be kept in mind.
The document stresses the need for merit as a major yardstick for the appointment of judges.
Another suggestion is that a high court should not remain without a chief justice for more than three months.
Some of the issues highlighted by the draft MoP are transparency in the appointment process, eligibility criteria, a permanent secretariat for the collegium and a process to evaluate and deal with complaints against candidates.
The government and the judiciary are learnt to be on the same page on the issue of a permanent secretariat for the collegium.