The latest draft of the Memorandum of Procedure (MoP) gives an insight into the NDA government’s vision for future judicial appointments as a “transparent and broad-based” exercise, involving not just a handful of senior collegium judges but all their fellow judges, the Chief Ministers and top law officers of the Centre and the States.
The draft is currently with Chief Justice of India T.S. Thakur and awaiting the judges’ approval. The past months have seen a stalemate with the judiciary raising objections against the earlier government drafts of the MoP.
On October 16, 2015, a Constitution Bench led by Justice J.S. Khehar had revived the collegium after declaring the government’s NJAC law unconstitutional. The Bench then went on to invite public opinion on ways to improve the opaque collegium system of judicial appointments. After receiving over 11,500 views from the public, the Bench had summarised them and tasked the government to draft a new MoP on December 16, 2015.
Government sources said they have been judicially directed to re-draw the MoP to widen the zone of consideration, make it more broad-based and usher in transparency, and that was exactly what they have been doing these past months.
To implement the judicial direction to “widen the zone of consideration”, the latest MoP draft wants all Supreme Court and High Court judges to be able to recommend names to their respective collegiums. Chief Ministers should also have the right to recommend names to the respective High Court collegiums. Similarly, the Attorney General should be allowed to recommend the names of judges to the Supreme Court at the Centre and Advocate-General of States to their respective State High Courts.
The draft also details a mechanism for an elaborate vetting process of names recommended for High Court judgeship through appraisal committees to be set up in High Courts. The government wants these appraisal committees to be made up of sitting or retired judges, jurists and academicians. The appointments to these appraisal committees would be made by the Chief Justice of the High Court.
Screening candiatesThese High Court committees would screen the names of the candidates, their backgrounds, the number of cases they have argued as lawyers, etc, before forwarding them to the High Court collegium.
Once the High Court collegium clears certain names, they would be sent to a similar appraisal committee at the Supreme Court. This apex-level committee would again sift through the names before they are finally referred to the SC collegium.
The government reasons that the two-fold vetting process – one by the respective High Court appraisal committee and then by the Supreme Court committee – would ensure transparency in judicial appointments.
The government has further asked the judiciary to fix an age for High Court judgeship and make it “non-flexible.” It also wants the mechanism for redressing complaints against judges to remain within the judiciary.
