Putting the ball back into the government's court, the Supreme Court directed the Centre to finalise a draft memorandum of procedure on judges appointments to high courts and the Supreme Court in consultation with the Chief Justice of India.
A five-judge bench led by Justice J.S. Khehar asked the Chief Justice of India to make his recommendation to the memorandum in consultation with the four senior most puisne judges of the Supreme Court.
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With this the Bench assured that the CJI plays a dominating role in the finalisation of the procedure of judicial appointments. The Bench has walked the fine line striking a balance between giving the government its due share and steering away from controversy by providing only broad suggestions to be included in the Memorandum on four points to ensure transparency.
With this it has avoided a situation where the CJI has to follow any iron-clad directions of this Bench and can also use his discretion to better the Collegium system.
The Bench's order touches on four points: One, how the Collegium can be made transparent; Two, the eligibility criteria to be fixed for persons to be considered suitable for appointment as a judge; Three, a mechanism to receive and deal with complaints against judges without compromising on judicial independence; Four, whether a separate secretariat is required, and if so, its functioning, composition and powers.
On eligibility criterion, the court said a minimum age should be prescribed for persons in the zone of consideration for elevation to the Bench in both HCs and the Supreme Court.
On ushering in transparency, the court suggested that the final memorandum of procedure be put up on the websites of all the HCs and the Supreme Court.
It further suggested that a record of dissenting opinions of sitting judges against a particular candidate should be maintained for transparency.
The court also suggested that independent secretariats be established in every High Court for streamlining the appointment process and rceiving of complaints. The procedure in receiving and dealing with complaints should also be put up on the websites of higher courts.
The Bench kept it open for the government and the highest judiciary to introduce further suggestions into the memorandum of procedure without sacrificing the requirements of confidentiality.
