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The government is learnt to have decided not to accept many crucial recommendations and observations made by the Supreme Court collegium regarding the draft memorandum of procedure (MoP) for appointments to higher judiciary.
Among other things, transparency — or the lack of it — in the manner in which the collegium feels the appointment process should be carried out is turning out to be a major sticking point and the same will be conveyed to the Chief Justice of India (CJI).
The government is also of the opinion that the fear of the collegium that a clause in the draft MoP, which will allow the government to reject any recommended name on grounds of national security, is unfounded.
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“Names will still come from the CJI. The government, if such a case arises, will share with the CJI any information that it has about a recommendee which makes it clear that his appointment will not be in the interest of the country. Also, the issue of Healthy Convention, which the judiciary refers to while arguing against such a clause, was not a mandamus that has to be followed. Read the Second Judges Case judgment,” a source told The Indian Express.
In its judgment in the Second Judges Case — Supreme Court Advocates-on-Record Association versus Union of India (1993) — the Supreme Court, while dealing with the issue of “non-appointment of anyone recommended on the ground of unsuitability”, had said that in case, “after due consideration of the reasons disclosed to the CJI, the recommendation is reiterated with the unanimous agreement of the other members of the collegium, then that appointment as a matter of healthy convention ought to be made”.
It is this sentence that the government is planning to cite to buttress its stand that its objection to any candidate recommended by the collegium merits more consideration than simply reiteration.
The Chief Justice of India T S Thakur had last month conveyed the collegium’s views to the government, voicing the collegium’s outright rejection of many of the clauses of the draft MoP finalised by a committee of ministers headed by External Affairs Minister Sushma Swaraj.
Work on bringing in a new MoP started after the judgment of a five-judge bench of the Supreme Court, headed by Justice J S Khehar in October 2014, declared as “unconstitutional and void” the National Judicial Appointments Commission (NJAC) Act passed by Parliament. The bench later directed that a new MoP be finalised by the government in consultation with the CJI.
The government sent the draft of the MoP to the CJI on March 22 while the CJI returned the same with the views of the collegium on May 23. The government will write to the CJI soon, sources said.
The government, after a series of meetings, has now decided to convey to the CJI that most clauses in the draft MoP to which the collegium has objected to reflect the spirit of judgments of the Supreme Court in the second, third and fourth (NJAC case) Judges cases, and also the crux of the reports finalised by the Supreme Court-appointed amicus after going through suggestions received from the public and others after the NJAC judgment.
At a meeting last week, where Union Law Minister D V Sadananda Gowda was also present, the consensus was that the collegium’s views don’t take into consideration that the new MoP is aimed at framing a transparent “eligibility criteria” for those considered for appointments to higher judiciary.
“There has to be fixed criteria to be followed by each high court while recommending names of lawyers and sessions judges for elevation to the HC bench. We want HC collegiums to consider 15 years record of each sessions judge while considering his case, so that performance as a judicial officer is the main criteria while making the recommendation, whereas the SC collegium wants to focus on seniority,” said a source in the Union Ministry of Law.
“Similarly, for lawyers, who are being considered for elevation, we are keen that the number of cases in which they have appeared should not be the sole criteria — focus should be on the quality of that lawyer’s work, something that is easily found out by going through the judgments in important cases he has appeared. We are also not in agreement with the view of the collegium on the issue of age bracket of those being considered for elevation. While the collegium feels that persons between the age of 44/45 years and 58 years can be considered for elevation, we are keen that the upper age limit should be pegged at 55 years,” the source said.
The government is of the view that while deciding to make additional judges of the HC — appointed for a period of two years — permanent or even re-appointing them after completion of two years, the collegium isn’t “strictly complying” with the existing MoP.
“The existing MoP clearly says that the Chief Justice (collegium) while recommending an additional judge as a permanent judge, should furnish statistics of month-wise disposal of cases and judgments rendered by the judge concerned as well as the number of cases reported in the law journal duly certified by him. However, we have found that this system is not being followed. We are going to insist on it,” the source said.
The government is also planning to cite the existing MoP to buttress its case for a more prominent role — read recommending names — for the executive in the appointment process. “Under the existing MoP, in case the Chief Minister desires to recommend the name of any person, he can forward the same to the Chief Justice for consideration by the collegium. However, this is not being followed now since Chief Ministers are never told about the Chief Justice’s plan to hold a meeting of the collegium,” the source said.
The government is also going to push the CJI and other members of the collegium to establish a “transparent and workable” complaint mechanism to deal with complaints against sitting judges. The government is of the view that the in-house mechanism is not working well and is shrouded in “too much secrecy” and, hence, should be replaced with a more effective system.
Sources said the government will insist on putting in place a uniform complaint redressal mechanism across all high court which “clearly define” a time-bound procedure to deal with complaints.
Another issue where the government is not in sync with the collegium’s view is on the establishment of a permanent secretariat to assist the collegium in the appointment process. “It should be clearly said in the MoP who will head the secretariat,” the source said.
The collegium, while returning the government’s draft, was of the view that it was an attempt by the government to circumvent judicial pronouncements and settled law on appointments in the higher judiciary. As first reported by The Indian Express, CJI Thakur and four senior-most judges of the Supreme Court held extensive deliberations on the MoP, with the final view that the draft wasn’t “acceptable” in its present form.