Even as the Chief Justice of India (CJI) and the collegium is yet to relent to the new norms proposed by the government for judicial appointments, the Centre’s latest draft of the Memorandum of Procedure (MoP) has relied majorly on a 2015 judgment of the top court’s Constitution bench.
The August 3 draft sent to CJI T S Thakur has referred to the five-judge bench’s decision on December 16, 2015, that asked the government to prepare the MoP in consultation with the CJI and four seniormost judges after taking into account factors such as transparency in the selection process, eligibility criteria and setting up of a secretariat.
The latest communication has repeatedly referred to this judgment while reiterating that the government must have an “effective” role in the selection of judges to the higher judiciary.
The draft MoP has cited observations made by three of the five judges in the Constitution bench that the government definitely had a role in the selection process, and in particular “preventing unworthy appointments” — as was put by Justice Kurian Joseph in a judgment authored separately.
Justice Madan B Lokur had said the “executive continues to have a vital role to play and in some cases, the final say in the appointment of judges” but it was their “defeatist attitude” that created problems. Justice J Chelameswar had held that “to wholly eliminate the executive from the process of selection would be inconsistent with the foundational premise that government in a democracy is by chosen representatives of the people”.
Government sources said the proposed MoP contained all these excerpts from the judgment. They pointed out that the December 2015 judgment was binding on the government as well as other legal entities, including the collegium.
They added that the government was hopeful that the collegium would agree to the proposed measures, including putting in place an evaluation committee to appraise names for appointments as judges.