The Supreme Court has raised concerns over two issues in the draft
Memorandum of Procedure (MoP) for appointment of judges including the
one relating to government's right to reject a recommendation on concerns of national interest. Other clauses include clauses
on the role of the Attorney-General of India in the appointment of
Supreme Court judges and Advocates-General in the appointment process of
High Court judges. The Supreme Court has asked the government to re-consider these clauses.
Present scenario:
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.
Background:
In December 2015, the supreme court, after restoring the collegium
system, had directed the Centre to frame a new MoP. The court had
directed the government to do this in consultation with the Chief
Justice of India, who would in turn take into confidence his four
seniormost puisne judges of the Supreme Court and who are part of the
collegium.
The MoP for appointment of judges to the Supreme Court and the High
Courts have ''always been prepared'' by the executive in consultation
with the President and the CJI in consonance with the judgments of the
Second Judges and Third Judges cases which ushered in and fine-tuned the
collegium system.
Five factors were held by Supreme Court's own consequential judgment to be very important:
- First, the MoP
may indicate the eligibility criteria, such as minimum age, for the
guidance of the collegium (both at the level of the high court and the
Supreme Court) for appointment of judges, after inviting and taking into
consideration the views of state governments and the Government of
India (as the case may be) from time to time.
- Second, the
eligibility criteria and the procedure as detailed in the MoP for the
appointment of judges ought to be made available on the website of the
court concerned and on the website of the Department of Justice of the
Government of India. The MoP may provide for an appropriate procedure
for minuting the discussions including recording the dissenting opinion
of the judges in the collegium while making provision for the
confidentiality of the minutes consistent with the requirement of
transparency in the system of appointment of judges.
- Third, in the
interest of better management of the system of appointment of judges,
the MoP may provide for the establishment of a secretariat for each high
court and the Supreme Court and prescribe its functions, duties and
responsibilities.
- Fourth, the MoP
may provide for an appropriate mechanism and procedure for dealing with
complaints against anyone who is being considered for appointment as a
judge.
- Fifth, the MoP
may provide for any other matter considered appropriate for ensuring
transparency and accountability including interaction with the
recommended persons by the collegium of the Supreme Court, without
sacrificing the confidentiality of the appointment process.
