With the Supreme Court collegium — headed by the Chief Justice of India T.S. Thakur — rejecting most of the Centre’s proposals on the memorandum of procedure (MoP) for the appointment of judges, the Narendra Modi government and the judiciary seem to be heading for a major confrontation.
There are more than 400 vacancies in high courts, which have a sanctioned strength of 1,016. This means that most high courts are working at 50 per cent strength. Since there is an inordinate delay in finalising the MoP, the process of filling the vacancies is likely to be further delayed.
With the rift wide open, the Centre has now sought the opinion of attorney-general Mukul Rohatgi for getting the MoP finalised after thrashing out the points of difference between the government and the collegium.
In 2015, the Modi government enacted the National Judicial Appo-intments Commission law for the appointment of judges. The apex court struck down this law in October 2015, and the MoP was prepared by the law ministry in April 2016. With the collegium having some reservations on certain proposals, the MoP was sent back in the first week of May. The government made some improvements and again sent it on to the collegium for its consent. The collegium again rejected many of the proposals. As a result, the MoP is yet to be finalised, and for the last 10 months, no appointments could be made. Only the confirmation of additional judges are being made.
The government wanted to introduce a clause where the judges are appointed/elevated to the Supreme Court on the basis of “merit-cum-seniority” as the sole criterion rather than “seniority-cum-merit”. The Centre also wanted retired judges to be involved in the consultation process. It has proposed to the collegium that during the elevation of judges to the Supreme Court or to the post of chief justice, primacy shall be given to the merit of the candidate rather than seniority alone.
This was not acceptable to the collegium as, according to the senior-most 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 the junior judge in a high court can also supersede the senior judge to become the chief justice of the high court.
Another proposal that does not find favour with the collegium is the Centre’s insistence on imposing a cap of 10 per cent or maximum three senior advocates from the bar to be directly appointed as a Supreme Court judge. The collegium’s believes it is free to appoint as many advocates as it finds deserving from the bar and cannot be bound by such suggestions by the government.
The government also wanted to reserve its right 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 back to the collegium for reconsideration. But if the collegium reiterates the recommendation, the Centre is bound to accept the recommendation. This happened recently in the case of the elevation of a high court chief justice. Though the collegium approved the elevation two times, the Centre has opposed his elevation and the issue is still pending.
