The government has decided to use Supreme Court judgements to rebut the objections of the collegium on the draft memorandum of procedure (MoP) on appointment of judges, including the one on right to reject a recommendation on grounds of national interest.
"All our arguments will be based on the judgements delivered by the Supreme Court in 1993, 1998 and 2015 on the issue of collegium system," a top government functionary said today.
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.
He said once the Supreme Court reiterates a recommendation on appointment, government clears the file based on "courtesy".
"We clear such cases due to courtesy. It is not as if the SC has ordered us to do so. And this has been made clear in its judgements based on which the collegium system came into being," he explained.
When asked about the government's stand on the collegium's move to reject certain key clauses of the MoP, Law Minister D V Sadananda Gowda refused to comment, saying the matter is still under consideration.
On the issue of rejecting an appointment on the grounds of national interest, he said, "national interest has to be safeguarded by the government."
Refusing to elaborate, he said, "the matter is still under consideration. How can I say anything now."
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.
The aim of revising the MoP was to bring in more
transparency in judicial appointments and the government believes that the revised draft is a step in that direction, the functionary said.
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.
While the government and the collegium are on the same page to have secretariats in high courts to process judicial appointments, the judiciary has opposed defining the role of the proposed secretariat.
"But that is part of their order on ways to improve the collegium system. We are not doing anything outside what the SC has said in the order," the functionary said.
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 which has raised objections on this.
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 Supreme Court or high court 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 memorandum 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 Gowda in March.
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 judgement, 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 on October 16 last year.
The collegium had also objected to introduction of 'merit-cum-seniority' as the sole criterion for elevation of judges and involvement of retired judges in the vetting process.
The collegium had instead said the MoP should mention 'seniority-cum-merit' as the criteria for appointment to higher judiciary.
It had also rejected the government's suggestion to set a cap of 10 per cent or a maximum of three senior advocates who can be elevated directly from the Bar as judge of the Supreme Court. The collegium had said it is free to appoint as many it finds deserving and the proposed cap was unwanted.
