The stage is set for a fresh round of confrontation between the higher judiciary and the government with the Supreme Court collegium virtually rejecting every contentious clause that the Narendra Modi government wanted included in the new Memorandum of Procedure (MoP).
Sources told The Indian Express that in its final meeting on March 10, the five-judge collegium, headed by Chief Justice of India J S Khehar, unanimously rejected the recommendation of the Modi government 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”.
CJI Khehar, it is learnt, conveyed the collegium’s views to the Centre through a letter on March 13. The latest views, sources said, appear to be the final views of the collegium on the issue.
Sources said, during discussions, members of the collegium were unanimous in their view that allowing the government to reject names on the claim of national security would be tantamount to handing the Executive a veto power.
“If there is sufficient material that the government provides to the collegium to substantiate its view that the appointment of a candidate could compromise national security, I don’t think any collegium will ever dismiss such sensitive feedback. But the government can’t be given a virtual veto to reject any name by merely invoking national security. This would lead to politicisation of the entire appointment process, something that the framers of the Constitution didn’t want,” said a member of the collegium.
Work on a new MoP, which began after 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 collegium is also said to have turned down the government’s proposals ostensibly meant to broadbase the process. These include: setting up a permanent secretariat to assist the collegium by “vetting and screening” the candidates; formally involving all sitting high court judges, senior advocates and state Advocate General in suggesting names from among lawyers for elevation; setting up a formal mechanism to adjudicate “merit and integrity” to decide which high court chief justice should be elevated to the Supreme Court.
The collegium has also not agreed to the government’s insistence on the judiciary setting up a committee of three judges of the Supreme Court, none of whom is a member of the collegium, to look into complaints against serving high court judges and examine the same for further action.
Sources in the collegium said that if the government returns any recommendation for appointment as a judge of the high court on the ground that the candidate is “unsuitable” and his appointment (as a judge) would not be in the “public interest”, the collegium will reserve the right to reiterate the name. There would, however, be a caveat: the name can be reiterated only if all members of the Supreme Court collegium, in writing, agree to do so.
In case this happens, the collegium has said, the government would have not option but to the process the appointment.
On the issue of national security, the collegium has said that, during the time that the name is under process, the government may provide a fresh input to indicate overriding condition of public interest with national security implications to warrant rejection of a name. However, if the collegium doesn’t agree with the government stand after examining the material on record and giving due weightage to it and unanimously reiterates the name, the government would have no option but to process the name to the President.
This is the not the first time the collegium has strongly rebuffed the Centre’s attempts to have a more prominent say in the appointment process.
In May 2016, the previous CJI, Justice T S Thakur, had written to the Centre, apprising it of the collegium’s unanimous view that the government could not be allowed to have the power to reject any name in the name of national security as it would only weaken the judiciary’s independence.
Since March 22, 2016, when the Centre first shared the draft MoP with the Supreme Court collegium, both sides have held several rounds of internal consultations but have stuck to their respective stands.
On the issue of establishing a permanent secretariat for “vetting and screening” the candidates, the collegium has decided that while there can be an institutional mechanism in the form of a committee to assist the high court collegium, the functions of this committee shouldn’t include vetting and screening of the candidates.
The government has been pushing the Supreme Court to agree to its recommendation to have am institutional mechanism – under the charge of the Union Law Ministry — in the shape of a secretariat that would maintain a database of judges, schedule collegium meetings, receive recommendations from various quarters and also complaints related to judges.
This, the Centre feels, would help the collegium select the best-possible candidates.
With regard to the appointment of Supreme Court judges from among judges, including chief justices, of the various high courts, the government wanted the MoP to fix the criteria as seniority, merit and integrity. It also favours that preference should be given to Chief Justices of the high courts according to their seniority, also recommending that in case the principle of seniority was not followed in any case, the collegium should record its reasons for doing so in writing.
However, the Chief Justice Khehar-led collegium has said that while for appointing high court judges, merit and integrity should be the main criteria, for elevation of high court judges to the Supreme Court, the criteria should be seniority but subject to merit and integrity. It has, however, not favoured a fixed mechanism to evaluate a high court judge’s merit and integrity so as to place him in the zone of consideration for elevation to the apex court.
It is also not agreeable to putting down in writing the reasons for disregarding a high court chief justice’s seniority to ignore his claim to judgeship of the Supreme Court.
The collegium has also rejected the NDA government’s insistence to formally involve all sitting high court judges, senior advocates and state advocate general in suggesting names from among the lawyers for elevation. While the government wanted that names collected in this manner should to be part of a pool — with a record maintained — out of which the high court collegium could select the best, the collegium has said that only the three-member high court collegium should decide on the names.
Incidentally, yesterday, Union Law Minister Ravi Shankar Prasad Prasad had questioned the refusal of the judiciary to involve the executive in selecting judges to the Supreme Court and the high courts.
“The Prime Minister possesses the nuclear button. The Prime Minister can do so much of work entrusted by the people of India, but the Prime Minister, through the Law Minister, cannot be trusted to appoint a fair judge. It is a very loaded question,” the minister said in Parliament.