Belying speculations that the Centre has proposed a secretariat of retired judges to deal with complaints against sitting judges of the Supreme Court and the High Courts, the government has said consideration of complaints against sitting judges will continue to be a strictly in-house process within the judiciary.
The government returned a draft of the Memorandum of Procedure (MoP) to the Collegium for its consideration on August 3 as part of the consultative process underway to finalise ways to make the collegium system of judicial appointments accountable and transparent.
On December 16, 2015, a Constitution Bench of the Supreme Court, led by Justice J.S. Khehar, had tasked the government to draft the MoP, while suggesting that a separate secretariat should be formed to vet the names which come up for elevation as judges.
Government sources said the Centre is following the directions of the Supreme Court and clarified that the receipt and consideration of complaints against the judiciary would remain in-house within the judiciary.
In June, the Supreme Court Collegium had reiterated its rejection of several crucial clauses in the government’s earlier draft MoP.
The collegium had taken offence to the government’s proposal to that merit be the overriding concern and not seniority, as is the norm, of judges during appointments and elevation. The collegium has said both merit and seniority should be balanced.
Again, the government wants a panel of retired judges to vet the applications of judicial candidates before they are forwarded to the collegium. Chief Justice Thakur has expressed reservations about this proposal.
Besides, the government also wants the authority to reject a judicial candidate for national security reasons despite the collegium’s recommendations. Finally, the government wants the Attorney-General of India and Advocates General of States to have a role in the appointment of Supreme Court and High Court judges, respectively.
Presently, the government is bound to comply if the Supreme Court Collegium chooses to override its disapproval of a person recommended for judicial appointment. If the government returns the candidate’s file to the collegium, and the latter reiterates its recommendation, the government has no choice but to comply.
The Memorandum of Procedure for appointment of judges to the Supreme Court and the High Courts has “always been prepared” by the Executive in consultation with the President and the Chief Justice of India in consonance with the judgments of the Second Judges and Third Judges cases which ushered in and fine-tuned the collegium system.
