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Memorandum of procedure: Behind the scenes, Govt and SC in tug of war over appointments — and turf

Given the trust deficit between the two after the SC, in October 2015, struck down the NJAC Act and the 99th Constitutional Amendment which gave politicians and civil society a final say in the appointment of judges in HC and the SC.

Written by Sheela Bhatt | New Delhi |
Updated: July 15, 2016 5:23:39 am
 Ravi Shankar Prasad, union law minister, Memorandum of Procedure, supreme court, National Judicial Appointments Commission, njac act, judges appointment, appointment of judges, high court judge appointment, supreme court judge appointment, hc judge, sc judge, supreme court collegium, sc collegium, qualification for being hc judge, sc judge qualifications, chief justice of india, chief justice, judge quota, indian express news, india news, judiciary news The key flashpoints: importance of seniority, need for judges to write their reasons down, having a committee to vet candidates to tapping the Bar for the bench.

IN first remarks as Union Law Minister on Monday, Ravi Shankar Prasad, speaking to The Indian Express, struck a conciliatory note vis-a-vis the judiciary.

Behind the scenes however, both sides are locked in an unprecedented exchange of notes, arguments and terms to hammer out the Memorandum of Procedure (MoP) that will define the contours of this vital and uneasy balance of power.

Of course, all this is easier said than done.

Given the trust deficit between the two after the Supreme Court, in October 2015, struck down the National Judicial Appointments Commission (NJAC) Act and the 99th Constitutional Amendment which gave politicians and civil society a final say in the appointment of judges in High Courts and the Supreme Court.


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It was this judgment that had recommended “appropriate measures” to improve the working of the Collegium system. A separate order, passed by a five-judge bench in December 2015, listed factors — these included eligibility criteria, transparency in the appointment process, secretariat and complaints — for preparing the MoP.

Multiple accounts, exclusively available to The Indian Express, reveal that the exchanges between the two sides reveal a tantalising faceoff that’s as much about ideas as it is about power. The key flashpoints: importance of seniority, need for judges to write their reasons down, having a committee to vet candidates to tapping the Bar for the bench.

Seniority & Merit

The government’s proposal is that while promoting a High Court Chief Justice or a judge to the Supreme Court, the criteria of seniority, merit and integrity would be followed. Preference should be given to Chief Justices of the High Courts keeping in view their “inter-se seniority”.

However, the judges’ view, said to be communicated to the Government recently, is that “the criteria of seniority as a High Court judge, subject to merit and integrity, would be followed”.

In other words, “seniority” is, yes, a factor but it should be subject to “merit and integrity”.

Reasons in writing

The government has proposed that “in case a senior Chief Justice being overlooked for elevation to the Supreme Court, the reasons for the same be recorded in writing”. The government says that of the five judges of the Collegium for appointing Supreme Court judges, the views of each one must be made known to the government.

This is necessary for the sake of “transparency” and to ensure there is no “favouritism”, is the government’s argument.

The Collegium’s counter-argument is that “recordings of reasons for overlooking a Chief Justice or a senior puisne Judge will be counter-productive” as the reasons specified may mar his/her prospects of being elevated to the Supreme Court at a “future point of time”. Moreover, it may also affect his/her duties as judge or Chief Justice and may become a “permanent blot on his/her career”.

The judges quote a 1998 judgment of a Supreme Court Constitution Bench in response to a Presidential reference on the issue of appointment and transfer of judges. “Where therefore, there is outstanding merit,” the judgment says, “the possessor thereof deserves to be appointed regardless of the fact that he may not stand high in the all-India seniority list or in his own High Court.. All that then needs to be recorded when recommending him for appointment is that he has outstanding merit.”

The government thinks that merely recording that “he has outstanding merit” is not enough — and not acceptable. Because its argument is: How can you be sure no favouritism has taken place when judges with “seniority” in High Courts are ignored? In fact, the government claims, the 1998 judgment does not imply that reasons need not be given when senior judges are being overlooked.

Three-judge quota

The government proposed that up to three judges may be appointed from the Bar or from distinguished jurists with proven track records. And that all judges of the Supreme Court should be open to recommend names for these postings. But the judiciary says that this “upto three” tantamounts to “either restricting the intake from the bar or fixing a quota of the bar”. And in neither case does it fall within the framework of the Constitutional provisions.

After deliberation, the government has agreed with this view that fixing a limit is not necessary so long as their representation is assured.

Committee & Secretariat

One serious difference between the two sides is over the government’s proposal to set up an institutional mechanism in the form of a committee to assist the Collegium in evaluation of the suitability of prospective candidates. It wants two retired judges of the Supreme Court and an eminent person/jurist to be jointly nominated by the Chief Justice of India and the government. The Collegium feels that’s not necessary.

The government counters that “wider consultation is necessary to select best candidates”.

To underline this, it argues that “consultation” is embedded in the Constitution when it comes to judges’ postings. Article 124(2) says: “Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose.”

The government has also proposed that there be a secretariat that maintains a database of judges, schedules Collegium meetings, maintains records and receives recommendations and complaints related to judges’ postings. The judiciary hasn’t rejected the idea of “a permanent secretariat “ but it believes that forming and functioning of it should be left to the wisdom of the CJI and it should be under the ambit of the Registrar of the apex court.

The government, however, wants it to be under the Law Ministry. It argues that the secretariat would help cast a wider net for better candidates and for the Collegium to decide, it should have comparative data.

Surely, the binding nature of the Collegium’s recommendation is what’s bothering the government. As per the existing system, the Collegium’s recommendations can be sent back but if it reiterates then the same, it is binding on the President.

That, the government’s advisors argue, is “only a matter of Healthy Convention” and not a legitimisation of the judiciary to “ride roughshod” on the appointments.

Above all, the government is arguing that three important judgments of 1993, 1998 and 2015 on appointment of judges does not give absolute powers to the Collegium. Instead, they ask for “participatory consultative process at the highest level”.

All these arguments by the government reiterates, expectedly, that in the integrated process “political executive has no role to play is incorrect”.

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