As the government finalises its reply to the objections raised the Collegium, Law Minister DV Sadananda Gowda on Thursday met External Affairs Minister Sushma Swaraj to discuss the response the government would give to the Supreme Court Collegium on its objections to the MoP, highly-placed sources said.
Swaraj had headed the Group of Ministers (GoP), which had finalised the MoP, a document that guides the appointment of judges to the Supreme Court and the 24 high courts. Before finalising its response, the government would await the opinion of Attorney General Mukul Rohatgi. He had played a key role in finalising the draft MoP.
“As of today, nothing is finalised. But the government would rebut at least some of the objections flagged by the Collegium,” a senior government functionary 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 operationalised and put in public domain. On May 28, the Collegium had returned to the government the revised MoP, suggesting changes in certain clauses.
It had questioned the government’s right to reject its recommendation on grounds of national interest.The clause on the right to reject a recommendation in national interest is contrary to the current practice, where the government is bound to accept a recommendation given by the Collegium, comprising four senior-most judges of the Supreme Court and the 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 had asked the government to rewrite it in a bid to make the Collegium system more transparent. Gowda had sent the memorandum to the CJI by in March.
Addressing a press conference on April 24 after the joint conference of chief justices and chief ministers here, the CJI had said that the core of the document, based on a Supreme Court judgement, will remain “unaltered” that the Collegium will make recommendations.
“Things like the number of judgements a candidate has delivered are contributory in nature,” he had said.Parliament had enacted the National Judicial Appointments Commission Act to overturn the over two-decade old Collegium system, where judges appoint judges. The law was struck down by the Apex Court on October 16 last year.
The Collegium had also objected to the introduction of ‘merit-cum-seniority’ as the sole criterion for elevation of judges and involvement of retired judges in the vetting process. The Collegium had instead said the MoP should mention ‘seniority-cum-merit’ as the criteria for appointment to higher judiciary.
It had also rejected the government’s suggestion to set a cap of 10 per cent or a maximum of three senior advocates who can be elevated directly from the Bar as judge of the Supreme Court. The collegium had said it is free to appoint as many it finds deserving and the proposed cap was unwanted.