Any dissent note to a recommendation of the collegium to appoint or elevate a judge should be mandatorily shared with the Executive.
This is one of the points government is likely to put when it finalises the draft Memorandum of Procedure (MoP) to guide the appointment of judges to the Supreme Court and the high court, amid calls to make the system of appointment of members to the higher judiciary more transparent.
The Chief Justice of India and members of the collegium will take a final call on the draft MoP. The government will hand over the final draft of the MoP to the CJI in the coming days.
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"If one of the members of the collegium gives a dissent, it should be attached along with the recommendation of the collegium so that the President, who appoints judges, is aware of it," a senior government functionary explained.
The collegium recommendation is sent by the Chief Justice of India to the Law Minister who in turn sends it to the Prime Minister. The Prime Minister then sends it to the President for final approval. As per constitutional provisions, President works on the aid and advice of the Council of Ministers.
As of now, there are two MOPs -- one dealing with appointment of Chief Justice of India and other judges of the Supreme Court and the other dealing with appointment of chief justices and other judges of high courts.
The MoP is a roadmap of procedure on how a judge will be appointed.
A similar provision exists in the present MoP for appointment of the Chief Justice of India and other judges of the Supreme Court but the term "dissent" is absent.
Point 3.2 of the existing MoP states that the "opinion of members of the collegium in respect of each of the recommendations as well as the senior-most judge in the Supreme Court from the high court, from which a prospective candidate comes, would be made in writing and the Chief Justice of India, in all cases, must transmit his opinion as also the opinion of all concerned to the government of India as part of record."
The draft MoP for appointment of members to the higher judiciary is being prepared after the Supreme Court struck down the National Judicial Appointments Commission (NJAC) Act on appointment of judges to the apex court and high courts.
While deciding on ways to improve the collegium system, the Supreme Court had recently left it to the law ministry to draft the MoP in consultation with CMs and chief justices of the 24 high courts.
The four issues highlighted by the draft MoP are transparency in the appointment process, eligibility criteria, a permanent secretariat for the collegium and a process to evaluate and deal with complaints against candidates.
While the MoP for Supreme Court judges is being finalised, the Law Ministry is also planning to draft another MoP for appointing Chief Justice and judges of the 24 high courts after getting inputs from chief ministers and chief justices of high courts.
Law Minister D V Sadananda Gowda had recently written to them seeking their inputs within 15 days.
Meanwhile, Justice Pradipkumar Premshanker Bhatt, a judge
of the Jharkhand High Court, has been transferred to the Gujarat High Court and directed to assume charge of his office on or before February 13.
Justice Jayant Maganlal Patel, a judge of the Gujarat High Court, has been transferred to the Karnataka High Court and directed to assume charge on or before February 13.
Justice Bela Madhurya Trivedi, a Rajasthan High Court judge, has been transferred to the Gujarat High Court and has been asked to assume charge of her office on or before February 12, the ministry said.
According to the latest data compiled by the Law Ministry, out of the approved strength of 1,044 judges in the 24 high courts, there are 443 vacancies.
In other words, the high courts were functioning with 601 judges as on January one.
The apex court, which has an approved strength of 31 judges, has five vacancies.
