While it may have rejected most of the Centre’s suggestions regarding the new Memorandum of Procedure (MoP) for appointments to the higher judiciary, the five-judge collegium of the Supreme Court has agreed to one major suggestion: having a minimum and maximum age for advocates to be considered for appointment as high court judges.
According to sources in the collegium, in its recommendations sent to the Centre, the collegium headed by Chief Justice J S Khehar has said that no lawyer below the age of 45 and above the age of 55 should be considered for appointment as judge of a high court.
As for elevation of district and sessions judges to high court benches, the collegium wants the maximum age to be capped at 58 and a half years. However, for appointment, the age of the judge at the time the vacancy arose would be considered.
Neither of the two Articles in the Constitution dealing with appointment of judges to the Supreme Court and high courts — 124 and 217, respectively — talks of any age bracket while laying down the eligibility criteria.
If the Centre agrees, which it is certain to do, it would be the first time such age criteria would find mention in the MoP. However, sources in the government indicated, they would have to convince representatives of lawyers to ensure there is no opposition from their end.
It is also still uncertain if the government would have to get Parliament to amend the Constitution to bring in an age criterion.
The recommendation of the collegium, which includes Justices Dipak Misra, Jasti Chelameswar, Ranjan Gogoi and Madan Lokur, assumes significance because the Centre has been insisting upon an age clause in the MoP. The Centre’s contention is that it would ensure uniformity and transparency in the appointment process and also rule out the possibility of members of the collegium adopting divergent (read preferential) yardsticks while recommending names. The Centre believes it would also end discretion, which too leads to favouritism.
Incidentally, during the hearings before a Supreme Court bench headed by CJI Khehar on a bunch of petitions challenging the constitutionality of the National Judicial Appointments Commission Act (NJAC), 2015, Attorney General Mukul Rohatgi had pointed to the appointment of the 59-year-old sister of a previous CJI as judge of a high court to buttress his arguments against the collegium system.
The Indian Express had reported earlier that the collegium had rejected virtually every contentious clause that the Narendra Modi government wanted included in the MoP, including that the government should have the power to reject any name for appointment as a judge of the high court for reasons of “national security”.
Among the other government suggestions rejected by the collegium, it is revealed now, is the proposal to have some fixed representation for women and marginalised sections. In its recommendations to the Centre, the collegium has only conceded that, as far as possible, representation would be given to women and marginalised sections.
Articles 124 and 217 do not provide for reservation for any caste or class of persons, but successive governments have been requesting the judiciary to appoint more persons from these groups, in view of the “inadequate representation of various sections of people, lower percentage of Judges belonging to SCs, STs and women”.
Currently the Supreme Court has only one woman judge and no Scheduled Caste judge.
The situation in the high courts is also not encouraging. In its report last year, the Department-Related Parliamentary Standing Committee on Law had also commented on this. Incidentally, the same report had also recommended that the maximum age for appointments to the Supreme Court should be 55 years and for high courts 50 years.
The age of retirement of a high court judge is 62, and of a Supreme Court judge 65.