IN THE ongoing struggle for supremacy over appointments in higher judiciary between the Supreme Court and the Narendra Modi government, one issue that has taken centrestage is the delay in finalisation of the new memorandum of procedure (MoP).
It has been more than three months since the Centre, on August 3, sent the government’s response to points of confrontation on the draft MoP to Chief Justice of India T S Thakur. Law Minister Ravi Shankar Prasad also visited the CJI a few days later to discuss the major points of confrontation.
However, the Supreme Court collegium has so far not communicated to the Centre its views on the draft MoP.
“We are waiting for a response from the Chief Justice of India. A new MoP is something we are also keen to have as early as possible. Please do remember that it was a Constitution Bench of the Supreme Court which, in the NJAC case, ordered the government to draft a new MoP in consultation with the SC collegium,” is all Prasad says on the issue.
However, government sources said they have been given to understand that the collegium has not been able to achieve consensus on the MoP.
Sources in the Supreme Court told The Indian Express no final decision has been taken yet on the outstanding issues and there is a possibility that some movement on this will take place once the collegium is reconstituted, since Justice A R Dave retired Friday.
CJI Thakur is also due to retire on January 3 next year.
The Centre and the Supreme Court are on a confrontation course over key clauses in the MoP, including the government’s insistence that it should have the power to reject any name recommended by the collegium for elevation to the Bench on grounds of national security. In May, the Supreme Court collegium had unanimously rejected the government contention for a veto power, saying it amounted to interference in judiciary by the executive.
In its August draft, the Centre had said that in case it turns down a recommendation on this ground, it will share with the collegium the reasons for doing so, which may not be acceptable to the collegium.
Both the government and the collegium are also not on the same page on the government’s insistence on having a screening and evaluation committee to evaluate and vet names of lawyers before the collegium takes a final call on them. The government cited paragraph 7 of the December 16, 2015 judgment of the SC in the NJAC matter to buttress its point about the need to have “supporting measures” so that “candidates can be screened and evaluated”. It also wants complaints against the candidates to be evaluated through a Secretariat, which would function under the CJI’s control.
In its earlier correspondence to the Centre, the collegium had objected to such a system, saying the government couldn’t define the role and responsibilities of such a Secretariat. Another sticking point is the government’s view that CMs should have a well-defined role in the appointment process.
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