In what could trigger a fresh round of confrontation between the Executive and the Judiciary, the Supreme Court collegium has questioned the government's right to reject its recommendation on the ground of national interest.
The collegium on Saturday returned to the government the revised memorandum of procedure (MoP) -- a document which guides appointment of judges to the Supreme Court and the 24 high courts -- suggesting changes in cetrtain clauses.
Highly-placed sources in the government said the collegium, headed by Chief Justice of India T S Thakur, has not rejected the MoP completely, but only "partially" by suggesting changes in some of the clauses.
The clause on right to reject a recommendation on national interest is contrary to the current practice where government is bound to accept a recommendation by the collegium, comprising four senior-most judges of the Supreme Court and the CJI, if it reiterates the same.
The revised MoP further provides that once the Centre has rejected a recommendation it will not be bound to reconsider it even after reiteration by the collegium.
The other clause which the collegium is learnt to have objected to is that the Attorney General at the Centre and Advocates General in the states should have a say in recommending candidates for appointment and elevation of judges to the Supreme Court and high courts.
This clause gives the Centre as well as the state governments an indirect say in naming candidates for the post of SC or HC judges.
The collegium is also learnt to have sought ways to shorten the present time-line where it takes around three months to appoint a judge after a recommendation is made.
The government has now sought the opinion of the Attorney General on the "observations" made by the collegium. AG Mukul Rohatgi had played a key role in drafting the MoP.
The memorandum, a document which guides the appointment of SC and HC judges, was revised after a Supreme Court bench asked the government to rewrite it in a bid to make the collegium system more transparent.
The memorandum was sent to the CJI by law Minister D V Sadananda Gowda in March this year.
Addressing a press conference on April 24 after the joint conference of chief justices and chief ministers here, the CJI had said the core of the document, based on a Supreme Court judgment, will remain "unaltered" that the collegium will make recommendations.
"Things like the number of judgements a candidate has delivered are contributory in nature," he had said.
Parliament had enacted the National Judicial Appointments Commission Act to overturn the over two-decade old collegium system where judges appoint judges. The law was struck down by the apex court in October 16 last.
During the over two-hour-long meeting, the CJI said
instead of the Attorney General or the Advocates General suggesting names for judicial appointments, only the Chief Ministers and Governors should have a say in the process.
The government is learnt to have agreed to it.
Noting that some of the sentences in the draft MoP could lead to confusion, the CJI asked the government to redraft those lines. The government agreed and redrafted document would be sent to the CJI in the coming days, the sources said.
The CJI made it clear that he would consult other four members of the collegium before taking a final call on the MoP. Another meeting is expected between the two sides in the coming days.
On May 28, the collegium had returned to the government the revised MoP -- a document which guides appointment of judges to the Supreme Court and the 24 high courts -- suggesting changes in certain clauses. It had questioned the government's right to reject its recommendation on grounds of national interest.
It had also asked the government to change certain other clauses.
The clause on right to reject a recommendation on national interest is contrary to the current practice where government is bound to accept a recommendation by the collegium, comprising the CJI and four senior-most judges of the Supreme Court, if it reiterates the same.
According to precedent, while the Executive drafts the MoP, both the government and the Judiciary have to agree on the provisions before it is operationalised and put in public domain.
Parliament had enacted the National Judicial Appointments Commission Act to overturn the over two-decade old collegium system where judges appoint judges. The law was struck down by the apex court on October 16 last year.
While deciding on ways to improve the collegium system, the Supreme Court had asked the government to redraft the MoP in consultation with states.
