The Supreme Court collegium has reiterated its rejection of several crucial clauses in the government’s draft Memorandum of Procedure for appointment of judges. The collegium is standing firm by its objections despite External Affairs Minister Sushma Swaraj and then Union Law Minister D.V. Sadananda Gowda having met Chief Justice of India T.S. Thakur to smoothen ruffled feathers between the highest judiciary and the government over judicial appointments.
The collegium, which had convened recently, has taken offence to how the government wants merit to be the overriding concern and not seniority, as is the norm, of judges during appointment 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 for its recommendations. Chief Justice Thakur has expressed reservations about this proposal.
Besides, the government wants the authority to reject a judicial candidate citing 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.
In December 2015, a Constitution Bench led by Justice J.S. Khehar, after restoring the collegium system, had directed the Centre to frame a new Memorandum of Procedure (MoP).
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.
