On the day President Pranab Mukherjee cleared the names of five new judges for the Supreme Court, who were recommended by the collegium, Chief Justice of India J S Khehar Monday said that the new method for appointing judges to the higher judiciary may be finalised by February-end.
On Monday, while hearing a PIL seeking transparency in the appointments of judges, Justice Khehar, who took over as the CJI last month, said: “Let us tell you the MoP (Memorandum of Procedure) is work in progress…and we should be able to finalise it by the end of this month.”
The CJI added: “We think we will finalise the MoP may be within this month. I can say many of your grievances (relating to opaqueness in the procedure to appoint judges) will be taken care of by the new MoP.”
The bench, also comprising Justice N V Ramana, however, did not entertain the PIL, filed by Haryana-based advocate Satya Veer Sharma, on merit and dismissed it. Sharma, apart from seeking a more transparent procedure of judicial appointments, had also asked for a new method to give weightage to lawyers appearing in subordinate courts.
The new MoP, which will guide all future appointments of Supreme Court and high court judges, has been a bone of contention between the judiciary and the government over the power to appoint judges.
Directed to be framed by the government in consultation with the CJI in December 2015, the draft MoP has shuttled between the two multiple times till date, amid several rounds of confrontation on procedural requirements. The last draft was sent by the government to the former CJI T S Thakur on August 3, and there has been no movement since.
Meanwhile, the names cleared for appointment as judges in the apex court are: Madras High Court Chief Justice Sanjay Kishan Kaul, Rajasthan High Court Chief Justice Naveen Sinha, Kerala High Court Chief Justice Mohan M Shantanagouder, Chhattisgarh High Court Chief Justice Dipak Gupta and Karnataka High Court judge Justice S Abdul Nazeer.
According to sources in the Law Ministry, the warrants of appointments of the new judges is likely to be issued this week. Of the sanctioned strength of 31 judges, the Supreme Court is currently short of eight — an all-time low. While three more judges are to retire this year, seven more will superannuate in 2018. In the last such appointments, the top court got four judges in May 2016. Since December 2016, the collegium had not made any recommendation to the government for appointment of new judges in the apex court.
On the issue of the MoP, the government had reiterated in its last communication to the CJI last August that it should have the power to reject any name recommended by the collegium for elevation to the bench on grounds of national security. The government had shared that it was willing to share the reasons of rejection with the collegium. In May, the collegium unanimously rejected the bid for veto power, pointing out that it amounted to interference in the judiciary.
The government had also refused to accept the collegium’s view against setting up a screening and evaluation committee to vet the names of lawyers before the collegium takes a final call. It had sought that complaints against candidates be evaluated through a Secretariat constituted for the purpose, which would function under the control of the CJI. The collegium had earlier objected to such a system, saying the government couldn’t define the role, functions and responsibilities of such a Secretariat.
The government is also sticking to its stand in the draft MoP that chief ministers should have a well-defined role in the appointment process. It also reiterated that there should be clear-cut, transparent criteria to deal with making additional judges of the high court — appointed for a period of two years — permanent, or even while re-appointing them after completion of their terms.