Govt wants right to veto judges, Supreme Court says no

The five-member Supreme Court collegium headed by Chief Justice of India T.S. Thakur is understood to have rejected the four contentious suggestions of the Narendra Modi government, including the right to “veto power” to disapprove the recommendations of the collegium for appointment of judges.

There are more than 470 vacancies in the high courts, which have a combined sanctioned strength of 1,016. So most high courts are working at 50 per cent strength. Since there is an inordinate delay in finalising the Memorandum of Procedure (MoP), the process of filling the vacancies is likely to be delayed further if the stalemate continues in putting in place the approved MoP.

Last week the then law minister, Sadananda Gowda, and external affairs minister Sushma Swaraj met CJI T.S. Thakur at his residence and held discussions to narrow down the differences. Subsequently the collegium, headed by the CJI, met and it is understood that it has rejected all the four suggestions made by the Modi government in the guise of ensuring transparency in appointments.

The demand that the judiciary found most objectionable was the government wanting “veto power” to reject any candidate recommended for appointment as a judge on grounds of “national security”.

Under the earlier MoP, the Centre had the right to return a name to the collegium for reconsideration for elevation as an apex court judge or initial appointment as a high court judge. But if the collegium reiterated the recommendation, the Centre was bound to accept the recommendation. But now the government wants to reject any name citing national security. The collegium did not approve this suggestion.

In the perception of the judiciary what is contemplated in the National Judicial Appointments Commission is sought to be re-introduced indirectly, which is not permissible as the NJAC law had been struck down. It has turned down the proposal as that would give the executive primacy in judicial appointments.

The government wanted to introduce a “clause” where judges are appointed/elevated to the Supreme Court on the basis of the sole criterion of “merit-cum-seniority” rather than “seniority-cum-merit”. It has proposed to the collegium that during the elevation of the judges to Chief Justice or to the Supreme Court, primacy shall be given to the merit of the candidate rather than seniority alone.

This is not acceptable to the collegium as, according to the most senior judges, it will mean that a senior judge who may not be the Chief Justice of a high court can also be considered for elevation to the Supreme Court. This also means that a junior judge in the high court can supersede a senior judge to become Chief Justice of the high court.

Another proposal that did not find favour with the collegium was the Centre’s insistence that retired judges also be involved in the consultation process. It said a panel of retired judges will evaluate the list of candidates before sending the list to the collegium for approval. The CJI and companion judges also did not accept the government’s suggestion that the attorney general be allowed to suggest appointments as Supreme Court judges and that the state advocate general suggest names to be appointed as high court judges.