The Supreme Court has raised concerns over two issues in the draft Memorandum of Procedure (MoP) for appointment of judges including the one relating to government’s right to reject a recommendation on concerns of national interest. Other clauses include clauses on the role of the Attorney-General of India in the appointment of Supreme Court judges and Advocates-General in the appointment process of High Court judges. The Supreme Court has asked the government to re-consider these clauses.
Presently, the government is bound to comply if the Supreme Court collegium chooses to override its disapproval of a person recommended for judicial appointment. If the government returns the candidate’s file to the collegium, and the latter reiterates its recommendation, the government has no choice but to comply.
In December 2015, the supreme court, after restoring the collegium system, had directed the Centre to frame a new MoP. The court had directed the government to do this in consultation with the Chief Justice of India, who would in turn take into confidence his four seniormost puisne judges of the Supreme Court and who are part of the collegium.
The MoP for appointment of judges to the Supreme Court and the High Courts have “always been prepared” by the executive in consultation with the President and the CJI in consonance with the judgments of the Second Judges and Third Judges cases which ushered in and fine-tuned the collegium system.
Five factors were held by Supreme Court’s own consequential judgment to be very important:
- First, the MoP may indicate the eligibility criteria, such as minimum age, for the guidance of the collegium (both at the level of the high court and the Supreme Court) for appointment of judges, after inviting and taking into consideration the views of state governments and the Government of India (as the case may be) from time to time.
- Second, the eligibility criteria and the procedure as detailed in the MoP for the appointment of judges ought to be made available on the website of the court concerned and on the website of the Department of Justice of the Government of India. The MoP may provide for an appropriate procedure for minuting the discussions including recording the dissenting opinion of the judges in the collegium while making provision for the confidentiality of the minutes consistent with the requirement of transparency in the system of appointment of judges.
- Third, in the interest of better management of the system of appointment of judges, the MoP may provide for the establishment of a secretariat for each high court and the Supreme Court and prescribe its functions, duties and responsibilities.
- Fourth, the MoP may provide for an appropriate mechanism and procedure for dealing with complaints against anyone who is being considered for appointment as a judge.
- Fifth, the MoP may provide for any other matter considered appropriate for ensuring transparency and accountability including interaction with the recommended persons by the collegium of the Supreme Court, without sacrificing the confidentiality of the appointment process.