Raising specific objections to names recommended for elevation by the collegiums of the high courts of Kerala and Allahabad, the government has slipped in some of the key criteria it wants included in the revised Memorandum of Procedure. Citing the proximity of some candidates to sitting judges and judicial officers, it has suggested the need for a wider pool of names, a stringent scrutiny mechanism, and the need for a dedicated secretariat.
The government and the Supreme Court collegium are yet to find common ground in drafting the revised MoP. After striking down the National Judicial Appointments Commission Act in October 2015, the Supreme Court had directed the Centre to finalise the existing MoP in consultation with the SC collegium, taking into account issues such as secretariat, transparency and complaint mechanism.
The Indian Express has learnt that while forwarding the names recommended by the collegiums of the Kerala and Allahabad high courts, the central government has pointed out to the SC collegium instances of proximity between sitting/former judges and the names recommended by the collegiums.
The communication, sources said, took place in July. It is learnt that the central government has cited proximity to judicial officers of at least seven of nine persons recommended by the Kerala High Court collegium. These include a son-in-law and relatives of former judges from the state.
The government has also cited similar instances, while forwarding 33 names recommended by the Allahabad High Court collegium, sources said.
In doing so, the government has communicated to the SC collegium to formalise an appointment mechanism, emphasising on three key issues. Firstly, the government has said that the HC collegium should forward a ‘wider pool’ of names — this will allow both the executive and judiciary to have a wider choice. To achieve this, it has suggested that the HC collegium seek the opinion from various stakeholders, including all senior judges of the HC, eminent jurists and academicians from the legal field and retired judges. At present, the Chief Justice of the HC makes the recommendation to the government after consultation with two senior judges, the Governor and Chief Minister.
Secondly, the government has emphasised the need for a stringent method of scrutiny of names by the HC collegium: that it should have a transparent, objective and rational way of scrutinising names.
Lastly, the government, sources said, has also mooted the idea of setting up a permanent secretariat of the collegium — it stated that this would result in continuity in regard to appointment of judges, even after changes in the composition of a collegium following retirement of sitting judges.