Following a 17-month standoff with the Centre, the Memorandum of Procedure (MoP) for appointments to the higher judiciary was cleared by the Supreme Court collegium, thus giving power to the government to reject the appointment of judges on grounds of threat to “national security”.
After agreeing to the Centre’s stance that national security ought to be part of the criteria to determine eligibility for the appointment of the apex court judges and various High Court judges, the collegium headed by Chief Justice J S Khehar and comprising Justices Dipak Misra, J Chelameswar, Ranjan Gogoi and Madan B Lokur decidedly also dropped its reservation about setting up secretariats in the SC and each high court to maintain databases on judges and assist the collegiums in the SC and the high courts in selection of judges.
The standoff had put on hold the appointment of nearly five SC and 500 HC judges.
While disposing off PILs which sought prompt filling of judicial vacancies, CJI Khehar said, “The MoP has been cleared. Now the filling up of vacancy in the High Courts would be increased by 25%. There is also a need to increase the post of judges in the High Courts. But the priority will be to fill the existing vacancies.”
What does the approval of the MoP mean?
HCs in India are operating at below 60% of their sanctioned strength. Following the Centre’s approval, the MoP will be adopted this week; thus raising the hopes of speedy filling up of vacancies.
Apart from the MoP giving power to the Centre to reject appointment of any candidate it deems a threat to national security, the government also has the authority to reject any recommendation of the collegium without ascribing reasons, on the same grounds.
The MoP further provides that once a recommendation has been rejected by the Centre, it will not be bound to reconsider it even after reiteration of the collegium.
This provision is in contrast to the current practice where the government is obligated to accept a recommendation made by the collegium.
As reported by India Today, former CJI TS Thakur was strictly against these MoP provisions as the government can now reject a person’s name by going against the recommendation of the collegium, if it feels that the appointment is not in the interest of the country.
How were the Supreme Court judges previously appointed?
Until the MoP for appointment of judges came along, Articles 124 and 217 of the Constitution stated that Supreme Court judges would be appointed by the President of India post “consultation” with the Chief Justice of India (CJI) on the recommendation of a collegium – a closed group comprising of the CJI and other senior judges.
Under the collegium system, the CJI must approve of all judicial appointment
This system was highly criticised and the government had proposed the National Judicial Appointments Commission (NJAC) in 2015 which would make the appointment of SC and HC judges more transparent as a committee comprising of members from the judiciary, legislature and civil society will appoint the judges.
However, the NJAC was rejected by the bench led by Justice Khehar as it would undermine the independence of the judiciary.
The bench asked the Centre to prepare a fresh memorandum in consultation of the CJI – the Memorandum of Procedure (MoP) for judicial appointments.