Daily
Excelsior: New Delhi: Monday, 22 February 2016.
The Prime
Minister’s Office has nudged the Law Ministry to finalise the new Memorandum of
Procedure, a document which guides the appointment of judges to the higher
judiciary, so it can be handed over to the Chief Justice of India for a final
decision.
In a letter
to the Law Ministry on Wednesday, the PMO asked it to give final shape to the
document after consulting the Attorney General.
The Supreme
Court had late last year asked the government to draft a fresh MoP in
consultation with states and high courts.
Chief Justice
of India and members of the collegium will take a final call on the draft
memorandum of procedure which the government will hand over to the CJI in the
coming days.
The earlier
drafts were also prepared after consulting Attorney General Mukul Rohatgi.
The MoP is a
roadmap on how a judge will be appointed.
As of now,
there are two MoPs one dealing with appointment of Chief Justice of India and
other judges of the Supreme Court and the other dealing with appointment of
chief justices and other judges of high courts.
The draft MoP
for appointment of members to the higher judiciary is being prepared after the
Supreme Court struck down the National Judicial Appointments Commission (NJAC)
Act on appointment of judges to the apex court and high courts.
While
deciding on ways to improve the collegium system, the Supreme Court had left it
to the Law Ministry to draft the MoP in consultation with CMs and chief
justices of the 24 high courts.
However,
despite reminders, only eight states, including Gujarat, Nagaland and Meghalaya
have responded with their suggestions.
The
government is unlikely to suggest bringing under the ambit of RTI the process
of appointment of judges to the Supreme Court and the high courts as it feels
it would not be a practical idea.
There is a
feeling within the government, sources said, that bringing the process of
appointment and elevation of judges to the Supreme Court and the 24 high courts
under the transparency law would not be practical as the collegium will be
flooded by RTI applications from candidates and other “interested parties”
seeking file notings and other details.
But at the
same time, amid calls to make the system of appointment of members to the
higher judiciary more transparent, government is likely to include a clause
that any dissent note to a recommendation of the collegium to appoint or
elevate a judge should be mandatorily shared with the Executive.
When the
Supreme Court was hearing ways to improve the collegium system, government had
pressed for bringing the system of appointment under the ambit of RTI to usher
in greater transparency.
The four
issues highlighted by the draft MoP are transparency in the appointment
process, eligibility criteria, a permanent secretariat for the collegium and a
process to evaluate and deal with complaints against candidates.
Government
and judiciary are learnt to be on the same page on the issue of creating a
permanent secretariat.
Earlier the
CJI had decided to wait for the fresh MoP before recommending transfers and
appointments. But later the SC collegium started recommending transfers and
elevations as government was taking time in finalising the document.
So far the
collegium has refrained from naming people from the lower judiciary and the Bar
as judges of high courts or the Supreme Court. (PTI)
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