Modi govt may keep key clauses in revised MoP

The Modi government is likely to maintain some of the provisions of the revised Memorandum of Procedure (MoP) on appointment of judges to the higher judiciary despite the Supreme Court Collegium objecting to certain clauses.

Union Law and Justice Minister D V Sadananda Gowda, this evening met External Affairs Minister Sushma Swaraj, to discuss the government’s response to the SC Collegium on its objections to the MoP, sources said.

Swaraj had headed the Group of Ministers which finalized the MoP, a document to guide appointment of judges to the Supreme Court and the 24 High Courts.

The government is also awaiting the opinion of Attorney General, Mukul Rohatgi before finalizing its response. He had played a key role in finalizing the draft MoP.

“As of today, nothing is finalized. But government would rebut at least some of the objections flagged by the Collegium,” sources said.

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 operationalized and put in public domain. On May 28, the Collegium had returned to the government the revised MoP suggesting changes to certain clauses. It had questioned the government’s right to reject its recommendation on the grounds of national interest. The clause on right to reject a recommendation in 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 Chief Justice of India (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 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.