Judicial appointments, senior: India
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He distinguished the NJAC from judicial appointment commissions working in other countries, and said even in the UK, the selection process did not involve any minister or bureaucrat. | He distinguished the NJAC from judicial appointment commissions working in other countries, and said even in the UK, the selection process did not involve any minister or bureaucrat. | ||
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==November 2015: SC approves a revised collegium== | ==November 2015: SC approves a revised collegium== | ||
Revision as of 13:41, 3 September 2016
This is a collection of articles archived for the excellence of their content. |
History
Collegium, NJAC and lobbying by retired judges
The Times of India, June 6, 2016
Dhananjay Mahapatra
Presence of the law minister in the judge-domi nated National Judicial Appointments Commission (NJAC) was a red rag to the Supreme Court, which could smell the possibility of executive-political influence in the selection of judges to constitutional courts.
It struck down the NJAC and said, “We are of the view that consequent upon the participation of the Union minister in charge of law and justice, a judge approved for appointment with the minister's support may not be able to resist or repulse a plea of conflict of interest, raised by a litigant, in a matter when the executive has an adversarial role.
“In the NJAC, the Union minister in charge of law and justice would be a party to all final selections and appointments of judges to the higher judiciary . It may be difficult for judges approved by the NJAC to resist a plea of conflict of interest (if such a plea was to be raised, and pressed), where the political-executive is a party to the lis. The above, would have the inevitable effect of undermining the independence of the judiciary .“
The SC wanted the process for selection of judges to be handled by the collegium of judges headed by the Chief Justice of India to maintain the independence of judiciary. It meant to say that if a a judge is lobbying for elevation to the SC, or if an advocate is lobbying for appointment as an HC judge, then let the lobbying be confined to the judiciary .
In such a judge-centric selection process for appointment of judges to the SC and HCs, one would expect that independence of judiciary would remain unscathed, being insulated from executive-political influence. And it is a natural corollary that products of the collegium system, after discharging their function as judges for years in complete isolation from the executive-politicians, would maintain a high degree of aloofness from the politicians.
The reality is very different. It has not changed a bit from what was in vogue in the 1980s, during the pre-collegium days. The NJAC judgment itself extracts a parag raph: “It appears that the government headed by (then) Prime Minister V P Singh had stalled appointments of 67 persons recommended by the chief justices of various high courts. Charges were fre ely traded against each other by the constitutional functionaries who are part of the appointment process of the constitutional courts. It appears that a law minister for the Union of India complained that state governments were trying to pack high courts with their `own men'.“
Who were these `own men' of the state governments? Have the `own men' not been appointed as judges of constitutional courts in the last two decades? The instances are plenty and talked openly in court corridors.One test of this `own men' is the way they lobby with the executive-politicians for post-retirement rehabilita tion in posts reserved for retired judges.
One such glaring example is of a recently retired HC chief justice, who was recommended by the CJI for an appellate tribunal. The government turned it down citing “adverse inputs“ against the ex-CJ. Having failed to secure a post-retirement tribunal post, he went to a political party and convinced it to recommend his name to the Centre for appointment as the head of a state human rights commission. But the tragedy with him is that the state HRC was yet to be constituted and the matter is pending before the SC.
During the hearing of the case, the CJI-headed bench was repeatedly telling the Centre that the national capital must have a human rights commission. It even commented that the Delhi government jumped the gun in recommending the name of a former HC CJ as its chairperson even before the commission was set up. Let us apply the test that was applied by the SC to quash NJAC. It was merely because the executive had a symbolic polluting presence in NJAC through the law minister and the apex court felt this apprehension of pollution was enough to endanger independence of judiciary .
The tribunals and the human rights commissions too adjudicate cases, at their very raw stage, involving the government and its functionaries. As per the SC test, those who head these tribunals and SHRCs must remain independent, which they are supposed to remain being products of the collegium system of selection of judges.
But many retired judges visit the law minister and other Union ministers to land one of these posts, for which the CJI still recommends the names but the government has the option of scotching it on grounds of integrity . The recently retired HC CJ sometime back visited a Union minister to placate him and get the desired post.
Judicial independence is not a factory produce. Uniformity of this rare trait in every judge cannot be achieved whether the executive selects them or the collegium.It is a personal trait which depends solely on the individual's character and the grooming he got in the judiciary .
NJAC vs collegium: The debate decoded
The Hindu, December 14, 2015
The Supreme Court rejected the National Judicial Appointments Commission (NJAC) Act and the 99th Constitutional Amendment which sought to give politicians and civil society a final say in the appointment of judges to the highest courts. Here is what you need to know about the row:
What is the NJAC?
The National Judicial Appointments Commission (NJAC) is a constitutional body proposed to replace the present Collegium system of appointing judges.
What is the Collegium system?
The Collegium system is one where the Chief Justice of India and a forum of four senior-most judges of the Supreme Court recommend appointments and transfers of judges. However, it has no place in the Indian Constitution. The system was evolved through Supreme Court judgments in the Three Judges Cases (October 28, 1998)
Why is Collegium system being criticised?
The Central government has criticised it saying it has created an imperium in imperio (empire within an empire) within the Supreme Court.
The Supreme Court Bar Association has blamed it for creating a “give-and-take” culture, creating a rift between the haves and have-nots. “While politicians and actors get instant relief from courts, the common man struggles for years for justice.”
How and when was the NJAC established?
The NJAC was established by amending the Constitution [Constitution (Ninety-Ninth Amendment) Act, 2014] passed by the Lok Sabha on August 13, 2014 and by the Rajya Sabha on August 14 2014. Alongside, the Parliament also passed the National Judicial Appointments Commission Act, 2014, to regulate the NJAC’s functions. Both Bills were ratified by 16 of the State legislatures and the President gave his assent on December 31, 2014. The NJAC Act and the Constitutional Amendment Act came into force from April 13, 2015.
Who will be in the NJAC?
It will consist of six people — the Chief Justice of India, the two most senior judges of the Supreme Court, the Law Minister, and two ‘eminent persons’. These eminent persons are to be nominated for a three-year term by a committee consisting of the Chief Justice, the Prime Minister, and the Leader of the Opposition in the Lok Sabha, and are not eligible for re-nomination.
If politicians are involved, what about judicial independence?
The judiciary representatives in the NJAC -- the Chief Justice and two senior-most judges – can veto any name proposed for appointment to a judicial post if they do not approve of it. Once a proposal is vetoed, it cannot be revived. At the same time, the judges require the support of other members of the commission to get a name through.
The collegium system
Centre will amend Constitution to scrap collegium
Dhananjay.Mahapatra @timesgroup.com New Delhi:
The Times of India The Times of India Jul 26 2014
The judge-appointing-judge system was devised by the SC through two judgments in 1993 and 1998.
There is ambiguity vis-a-vis the constitutional provisions on the appointment of judges and the present practice.
Two articles provide that the executive, through the President, would have primacy in appointment of judges. This is how it was till 1993, when a constitution bench of the Supreme Court held that the CJI would have primacy in appointment of judges.
Article 124(2) says, “Every judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the judges of the Supreme Court and the high courts in the states as the President may deem necessary for the purpose...“
Apex court's judgments stripped exec of any say in judge selection
Article 124(2) of the Constitution also provides that “in the case of appointment of a judge other than the Chief Justice, the Chief Justice of India shall always be consulted“. For appointment of a high court judge, Article 217(1) mandates the President to consult the CJI, governor of the state and chief justice of the HC.
Five years after a Constitution bench of the Supreme Court held that the CJI would have primacy in appointment of judges, in 1998, another Constitution bench judgment stripped the executive of any significant say in the appointment of judges to constitutional courts by devising the CJI-headed collegium system.
The scheme, which has been called judicial usurpation by others but justified by judges by invoking judicial independence, has lately been under the scanner for opaqueness.
So much so that former CJI J S Verma, author of one of the judgments by which the judiciary conferred upon itself the right to appoint judges, sought a review.
Efforts of the executive to do away with the collegium system began under UPA but failed to fructify. While in opposition, BJP supported the move but demanded that the Judicial Appointments Commission, which is proposed to select judges, should be fortified with a constitutional amendment in view of a likely challenge in judiciary .
It reiterated its support for JAC after coming to power, retired SC judge Markandey Katju about a former CJI giving in to political pressure to extend the tenure of a “corrupt“ judge is likely to provide fresh justification for its plans.
The Judicial Appointments Commission Bill, 2013 proposes replacing the collegium with a six-member panel headed by the CJI and comprising two SC judges, the law minister and two eminent citizens as its members.
The bill provides for selection of eminent citizens through another high-level committee comprising the Prime Minister, the CJI and the leader of opposition in Lok Sabha.
A parliamentary standing committee examined the bill and recommended that the JAC panel, headed by the CJI, should be a seven-member committee instead of six as proposed. It had suggested that three eminent persons be included in the panel instead of two proposed in the bill, with one of them either a woman or from the minority community or from SC/ST community.
Collegium system failed: Law panel chief
Law commission chairman Justice A P Shah said THE collegium system’s conduct has been opaque and that appointments to higher judiciary lacked transparency.
The collegium system is so opaque that even if someone wants to speak out, he cannot do it having come through the same system, he said. “The collegium system has completely failed, judges are appointed on unknown criteria,“ Justice Shah said, calling the apex court system of appointing judges as a cabal. “It has failed as favourites get appointed and the rest are left out,“ said the former chief justice of Delhi HC. He pointed out that the collegium had gone ahead to appoint a judge at the age of 60 years when the criteria clearly says any appointment to higher judiciary has to be below the age of 55.
2014: Collegium system ends
BENCH PRESS Dec 28 2014
MANOJ MITTA
The 21-year-old system of judges appointing themselves was scrapped in 2014, sparking fears of a decline in judicial independence On the historic day of May 16, 2014, when BJP became the first party in 30 years to win a clear majority in national elections, there was another significant development. It was the Supreme Court judgment passing strictures on the Gujarat government -specifically the home minister, who was Narendra Modi himself -while acquitting all the six accused for the Akshardham terror attack which had taken place barely six months after the post-Godhra riots. As it happened, within three months of the Akshardham judgment, the government pushed through a constitutional amendment stripping the judiciary of its “primacy“ in appointments to the SC and high courts.The 99th constitutional amendment Bill and the accompanying legislation, the national judicial appointments commission Bill, are set to dilute the powers that the SC appropriated for itself and the high courts through a controversial reinterpretation of the Constitution in 1993.
The new system of judicial ap pointments, which has restored the executive's say in the matter and opened up the process to two “eminent persons“ from outside, will come into force when at least 15 state assemblies endorse this far-reaching change. In place of the collegium consisting only of judges, the commission will have judicial and nonjudicial members in equal measure.Besides the Chief Justice of India (CJI) and two senior SC judges, the commission will have the law minister and the two eminent persons nominated by a panel consisting of the Prime Minister, CJI and the opposition leader in the Lok Sabha.
Though several from the opposition ranks and the bar have attacked it as an erosion of judicial independ ence, the circumstances were propitious for the government to make a strong case for doing away with, what has long been reviled as “a selfperpetuating oligarchy“. The credibility of the judiciary had been hit by a series of scandals -concerning probity and sexual misconduct -even prior to the formation of the Modi government.
The first clash under the new dispensation was on the collegium's recommendation to ap point senior advocate Gopal Subramanium to the SC. Departing from the practice of going by IB reports, the govern ment blocked Subrama nium's candidature on the basis of an adverse input from the CBI. This provoked a controversy as it was seen as a politically motivated move to keep away Subramanium on account of his role as amicus curiae in the Sohrabuddin fake encounter case. It was on his report that the SC had ordered a CBI probe leading to a charge-sheet being filed against Gujarat police officers as well as Amit Shah in his capacity as minister of state for home.
But the next flashpoint helped the government gain a moral edge over the judiciary. It was a blog written by former SC judge Markandey Katju alleging that, when he had been chief justice of the Madras high court, his attempt to get rid of a corrupt judge had been thwarted by then CJI, RC Lahoti. Detailing a murky sequence of events, Katju wrote that despite receiving an adverse report from the IB, Lahoti gave in to pressure from the Congress-led coalition government which in turn wanted the corrupt judge to be spared at the instance of its ally DMK. Though Lahoti denied this, Katju's blog put the judiciary on the defensive as it was evidently based on inside knowledge.
Katju went on to write that in response to another complaint of his against an Allahabad high court judge, the then CJI, SH Kapadia, had ordered tapping of telephones. Kapadia too denied Katju's contention.A day after Kapadia's denial on August 11, the then CJI, RM Lodha, erupted in court saying that there was “a misleading campaign against the judiciary to bring it into disrepute“. The provocation was a petition questioning the reported elevation of a Karnataka high court judge, KL Manjunath, as chief justice of the Punjab and Haryana high court despite the objections raised by an SC judge. The government's decision to return Manjunath's file underscored the fragility of the collegium system.
The succession of such events was enough for the government to garner enough support in both Houses to make the long-awaited breakthrough on judicial appointments. There was an interesting epilogue to this institutional battle, a month after passage of the Bills. A Constitution bench headed by Lodha stopped an executive intrusion into the judicial domain by striking down the national tax tribunal Act 2005. But the growing strength of the executive in 2014 has triggered fears of a parallel decline in judicial independence.
Centre’s arguments in support of NJAC
The Times of India, Jun 06 2015
Pradeep Thakur
In 2 decades, govt faulted 20 collegium-approved judges
The central government has in the last two decades raised objections against 15-20 recommendations of the Supreme Court collegium for appointment of judges in SC and high courts.Some of the objections were also made against the recommendations for appointment of chief justices of HCs. The information has been collated to address queries raised by a five-judge constitution bench hearing a case on the validity of the National Judicial Appointments Commission. These are part of the arguments in support of NJAC the government may present before the bench when the hearing resumes on Monday.
The Centre's objections were based on Intelligence Bureau findings, a process followed by the government in case of appointment of a new judge. Though an IB report is not `required' in case of a permanent judge's elevation, but the government may raise objections if it receives an adverse report.
A source said, in most of the cases where the government had raised objections against the collegium's recommendations, the apex court had accepted them and dropped appointments, barring three or four cases where the SC had reiterated its decision. Gopal Subramanium's case was one of them who later withdrew his candidature for SC appointment.
Earlier, the SC had asked the government to place on record facts that how many times the Centre had raised objections against collegium's recommendations and in how many cases the SC reiterated its decision.
The government has been strongly defending the NJAC which has replaced the two decades old collegium system. The six-member NJAC has dominance of apex court judges as three members are from the SC, including the CJI who is the chairman of the commission. Besides the CJI and two senior-most judges of the SC, the NJAC has the law minister and two eminent persons as the other members of the commission.
Though the NJAC was notified in April, it could not be constituted as the CJI refused to be part of the process citing pendency of the case.
The two eminent persons in the NJAC are to be appointed by a committee comprising the Prime Minister, the CJI and the leader of the largest party in Lok Sabha. The first meeting of the committee was scheduled then called off due to refusal of the CJI.
The government is likely to reiterate its commitment to the independence of the judiciary at the same time defending the NJAC.
“The independence of judiciary is derived from the service terms and condition of judges that cannot be changed to their disadvantage,“ the source said.
The collegium system undermined the efficiency of courts: Centre
The Times of India, May 09 2015
Collegium aids favouritism: Centre
Dhananjay Mahapatra
The government kept up its offensive against the judiciary's monopoly in the appointment of judges by saying that the collegium system worked like a huge favour-dispensing scheme which undermined the efficiency of courts. Supplementing attorney general Mukul Rohatgi's belligerence in seeking reference of petitions challenging validity of the National Judicial Appointments Commission (NJAC) to an 11-judge bench, solicitor general Ranjit Kumar was blunt when he said on Friday , “The collegium system has done little to strengthen independence of judiciary . It has created intra-dependence among the judiciary .“
Arguing before a bench of Justices J S Khehar, J Chelameswar, Madan B Lokur, Kurian Joseph and Adarsh Goel, Kumar said the collegium's choices were thrust upon chief justices of high courts as fait accompli. For appointments to high courts, the collegiums comprised the CJI and three senior-most judges of the Supreme Court.
The SG said, “I am not taking any name though I have at least 20 such examples. In 1993, the SC appropriated the power to appoint judges from the executive. It is not for judicial independence but intra-dependence. There is a former chief justice, who became an SC judge, who had said `I have to obey my masters to appoint judges in the HC because I want to go to Supreme Court'.“
The startling allegation came just before the bench broke for lunch and that was the reason why there was no response to it from the court.But if the SG's charges are true, it means there was an unwritten quid pro quo in judges' appointment -the chief justices of HCs blindly agree to the choices of the collegium to improve their chances for elevation to the Supreme Court.
Kumar said, “The collegium system has no transparency and lacks accountability. In contrast, the National Judicial Appointments Commission, brought in by a constitutional amendment, has the necessary checks and balances. NJAC will strengthen the independence of judiciary .“
Attorney general Mukul Rohatgi said the problem faced by a few additional judges, whose two-year tenure could come to an end during pendency of the challenge to NJAC's validity , should not deter the court from referring it to an 11-judge bench. “I am ready for an interim order from the court on the issue to protect the additional judges,“ he said.
“What is the hesitation in referring the matter to an 11judge bench? It is a matter of huge importance,“ the AG said. But the bench retorted, “AG, you please don't start deciding how many judges should hear the matter.“
Collegium appointed many inefficient judges: Centre
The Times of India, Jun 11 2015
AmitAnand Choudhary
A day after Supreme Court spoke out against the Centre's “hit-andtrial“ method of appointing judges -in a reference to the replacement of the old SC collegium system with the National Judicial Appointments Committee -attorney general Mukul Rohatgi on Wednesday told the SC that the collegium had appointed many undeserving and inefficient judges to the apex court and high courts who went on to create havoc in the country . Rohatgi submitted in a closed envelope a list of eight cases of what he called “bad appointments and selection“ at the instance of the SC collegium. The attorney general followed that up by referring to what he called questionable conduct by many judges, including three in Supreme Court, as he argued that the notion that only judges could appoint good judges was a “myth“.
He referred to a recent case of a Madras HC judge threatening to initiate contempt proceedings against the chief justice of the court, and asked why action had not been taken against him by the SC, which should have barred him from handling cases. “Havoc is being created in the country due to appointment of such judges.One bad fish can spoil the whole pond,“ the AG said. Attorney general Mukul Rohatgi on Wednesday cited what he called “bad appointments and selection“ of judges, in response to a five-judge Constitution bench headed by Justice J S Khehar asking the government to back up its contention against the collegium by citing instances of bad choices.
Rohatgi referred to the truancy of a former SC judge who generated headlines for lack of punctuality and could hold hearings only in afternoons. The judge used to come late even in the high court but still the collegium recommended his elevation to the SC. “This was the habit going on for the last ten years when the judge was in HC. If such was the track record then how was the judge promoted to the Supreme Court.This is not a rare single case of judicial indiscipline; many judges in various high courts come late and refuse to take up cases after lunch but the judiciary didn't take action against them,“ the AG said, adding that the government did not raise the issue as it would have been termed as interference in the independence of judiciary .
Rohatgi also pointed out that The Times of India was threatened with contempt of court for writing about the judge's lack of punctuality . Significantly , Fali S Nariman, the noted constitutional lawyer who is opposing the government on NJAC, supported Rohatgi on this. The Bench, too, chose not to join issue with him, preferring to switch to a lighter note, saying, “They are lordship in the true sense.“
AG, however, remained serious and moved to cite two other examples of appointments to the apex court by the collegium. He recalled the case of a SC judge who, according to him, was seen as inefficient, and that of yet another whose observations and comments were seen as belittling the dignity of a Supreme Court judge.
Appearing before the bench, also comprising Justices J Chelameswar, Madan B Lokur, Kurian Joseph and Adarsh Kumar Goel, the AG said the collegium system was not following the principle of meritocracy resulting in inefficient judges being appointed at the expense of deserving candidates. Without taking any names, he said many judg es in the SC and various high courts were not following court decorum and discipline.
Rohatgi said in many cases the collegium did not take into account the merit of a person and decisions to recommend names were taken on the basis of extraneous considerations.He said a retired SC judge in his entire life as a judge in various HCs did not dispose of more than 100 cases, but was still appointed to the SC; he was now a member of a Commission. The AG said there were many deserving judges who had disposed of thousands of cases but were not being promoted. He said some radical thought was required to shake up the present judicial system and NJAC was a step to bring accountability and transparency in the system.
The bench agreed with his contention that collegium made mistakes, but said that could not be the only ground to replace it.
Collegium system has not worked well: SC
The Times of India, Jun 17 2015
The Supreme Court has acknowledged the collegium system of judges appointing judges, which Parliament has replaced with National Judicial Appointments Commission (NJAC), has not worked well, reports Dhananjay Mahapatra.“The (collegium) system is good, but the implementation has gone wrong,“ a fivemember SC bench said. P 11 Senior advocate Fali S Nariman, lead lawyer for petitioners questioning the constitutional validity of the National Judicial Appointments Commission (NJAC), was made to face his own bitter criticism of the Supreme Courtdrafted collegium system for appointment of judges. Former solicitor general T R Andhyarujina and additional solicitor general Tushar Mehta cited excerpts from Nariman's autobiography `Before Memory Fades' to drive home the point that not only had Parliament and 20 states ratified the NJAC to re place the collegium system but Nariman, the lead opponent of NJAC, too was against the collegium system.
Nariman was the counsel who argued for petitioner `Supreme Court Advocates on Record' in the 1990s, leading to formulation of the collegium system by a nine-judge constitution bench. Prior to the collegium system, the executive appointed judges in consultation with the CJI.
In his book, Nariman had devoted an entire chapter to express disappointment at the working of the collegium system. He wrote, “I would suggest that the closed-circuit network of five judges should be disbanded.“
Nariman was unperturbed by the opponents' remarks. He told TOI he had made his views clear to the SC during initial arguments against the NJAC in which the primacy of judiciary in appointment of judges has been erased. He said he still felt the collegium system had not worked well. But that did not mean that the present form of NJAC was a good sub stitute, he said.
Collegium system good but implementation faulty : SC
The Times of India, Jun 17 2015
Dhananjay Mahapatra
AG submits list of bad appointments
During hearing of a bunch of petitions challenging the validity of the NJAC, the Centre and states have slammed the collegium's nontransparent and non-accountable manner of appointing judges to the Supreme Court and high courts. The attorney general even submitted a list of bad appointments to the five-judge Constitution bench hearing the matter.
“One is the (collegium) system itself. The other is the implementation of the system-provided procedure.The National Commission to Review Working of the Constitution headed by Justice M N Venkatachaliah had said when the collegium system was devised by the Supreme Court, it was hailed the world over as a unique and good system,“ the bench of Justices J S Khehar, J Chelameswar, Madan B Lokur, Kurian Joseph and Adarsh K Goel said. “So, the (collegium) system is good, but the implementation has gone wrong. That does not mean the system is bad,“ the bench said in response to senior advocate T R Andhyarujina's argument that evolution of the collegium system was neither legally justified nor had worked satisfactorily . The court pointed out that the qualification for `eminent person' did not specify whether they should be Indians.“Can a foreigner be appointed as eminent person in NJAC?“ the bench asked.
Mr Justice Cyriac Joseph
Mr Mukul Rohatgi’s arguments
The Times of India, Jun 20 2015
89 judgments in all of 115 pages: Rohatgi keeps up attack on judge
Attorney general Mukul Rohatgi ignited the sedate, academic arguments on the issue of NJAC's constitutional validity in the Supreme Court by reiterating his charge against former SC judge Justice Cyriac Joseph that he was miserly in authoring judgments. Rohatgi informed a fivejudge bench headed by Justice J S Khehar that Justice Joseph, while in Uttarakhand high court, had delivered 162 judgments. Of this, he produced copies of 89 judgments that together ran into 115 pages.
“These cannot be even called orders as they did not decide rights of the parties.These are merely stating that the petition has become infructuous or allowing the petition to be withdrawn. In Delhi high court, I know of a worse situation as I prac tised extensively when Justice Joseph was a judge. He had reserved more than 100 judgments and went out, on being transferred, without delivering the judgments, warranting re-hearing of the cases,“ Rohatgi said. Senior advocate Anil Divan shared the AG's impression.
“Of the 162 judgments, two could be called judgments as one ran into 15 pages and the other 27 pages. But both these judgments were authored by the other judge who was part of the bench headed by Justice Joseph,“ the AG said.
The court closed the chapter saying “we are not holding an inquiry into this“, and focused on arguments on petitions challenging the constitutional validity of National Judicial Appointments Commission (NJAC), which replaced the 20-year-old collegium system wherein judges selected judges for the SC and HCs.
Mr Fali S Nariman’s arguments
Fali S Nariman, had argued for lead petitioner Supreme Court Advocates-on Record Association and said states had ratified only the constitutional amendment and not the NJAC. Hence, the government could not legitimately claim that the NJAC had been ratified by states.
Moreover, the NJAC brought out significant changes in the procedure for appointment of judges and hence should have been a part of the constitutional amendment, he said. “By not making the NJAC procedure a part of the constitutional amendment, the government has played a fraud on the Constitution which gave a lot of importance to judicial independence,“ Nariman said.
Appearing for Bar Association of India, senior advocate Anil Divan said the NJAC had opened the door for political interference in the appointment of judges, which has consistently been regarded taboo, both by the Constitution-framers and during the long period of working of the Constitution.
He distinguished the NJAC from judicial appointment commissions working in other countries, and said even in the UK, the selection process did not involve any minister or bureaucrat.
November 2015: SC approves a revised collegium
The Times of India, Nov 20 2015
AmitAnand Choudhary
Revived collegium to go ahead with appointment of judges: SC
The Centre told the Supreme Court that it would not formulate the draft Memorandum of Procedure (MoP) on the functioning of the collegium system for “judicial vetting“. It instead suggested that the task of reforming the system of appointment of judges should be left to the government, a plea which was rejected by the apex court. Afive-judge constitution bench of Justices J S Khehar, J Chelameswar, Madan B Lokur, Kurian Joseph and Adarsh K Goel went ahead with the proceedings to explore ways to make the collegium system more transparent and accountable as it concluded the hearing. The bench clarified that the now revived collegium system can go ahead with the appointment process for judges in higher judiciary which has been in limbo for almost one year after the National Judicial Appointments Commission (NJAC) was brought in force and vacancies in high courts shot up to 40%. The bench is likely to pass an order suggesting measures to reform the system after the Centre refused to place the draft MoP to be followed by the collegium for appointment of judges incorporating the suggestions given by people from different walks of life.
A day after the apex court asked Attorney General Mukul Rohatgi to draft MoP and place before it within 15 days, he told the bench it is exclusively an executive function of the government in consultation with the Chief Justice of India and it cannot be subjected to “judicial vetting“.
“Memorandum is an executive document. There is no reason for the court to see what is there in MoP .Leave it for the government to frame it in consultation with the CJI,“ he said.
“Suggestions are already there. The court can also give its suggestions and the job of the court comes to an end. The government would work out on MoP . It is unnecessary burden being taken by the court. It is not possible that the draft prepared by government in consultation with the CJI and approved by the Prime Minister be vetted by the court,“ he said.
The AG said the role of CJI would finish if MoP is decided by court and pleaded that the bench should refrain from venturing into the area.
The bench, however, said there are gaps in the present MoP due to which the judiciary is facing problems and there is no transparency in appointment of judges. It said those gaps should be filled up by framing a new memorandum.
The bench then went ahead and concluded the proceedings noting down various suggestions given by lawyers on reforming the “opaque“ collegium system. The constitution bench had taken the unprecedented step of inviting views of general public for improvement of the collegium system which has been widely criticised for being non-transparent. The SC has taken up the task to improve the collegium system after striking down the National Judicial Appointments Commission, terming it unconstitutional.
2014: Panel to pick judges
Jan 01 2015
The Supreme Court collegium system of appointing judges to the apex court and high courts got a burial with President Pranab Mukherjee giving his assent to the Judicial Appointments Commission Bill .
The bill has already been ratified by at least 17 states and many more are in the process of doing so, said a senior law ministry official. It is mandatory for a constitutional amendment bill after it is passed by both Houses of Parliament to be ratified by at least half of the states. This brings to an end a system which the apex court had put in place through a judgment in 1993 to do away with the earlier practice of the government appointing judges.
The process of replacing the collegium with a panel was initiated during the first NDA government through a bill in 2003 but it was never taken up by Parliament. After Modi took over, Ravi Shankar Prasad, law minister in the first NDA government, initiated the NJAC bill and pursued political parties to evolve a consensus. The government will shortly notify the new Constitutional amendment replacing the SC collegium with the National Judicial Appointments Commission (NJAC). After the notification, the process of setting up of the NJAC will begin as provided under an enabling legislation which has been passed by Parliament along with the Constitution amendment bill.
The enabling NJAC bill provides for a six-member commission headed by the chief justice of India and comprising two senior SC judges as its members besides two eminent persons and the law minister. The two eminent persons in the commission will be appointed by a panel comprising the CJI, the Prime Minister and the leader of the largest opposition party in Lok Sabha. The NJAC also has provision for a veto where it provides that no name opposed by two or more of the six-member body can go through. The two eminent persons will have a tenure of three years and one of them would be from one of the following categories: scheduled castes, scheduled tribes, women or the minority community .
After the NJAC is set up, a name recommended for appointment as judge to the SC or high courts can be returned by the President for reconsideration. Though an initial recommendation to the President for appointment can be made by a 5-1 majority , this would not suffice to re-recommend the same name.
If a name is returned for reconsideration, the committee can reiterate the name only if there is unanimity among the members after reconsideration.
Appointment of judges: superior courts
Whatever the process, men of character must pick judges
LEGALLY SPEAKING –
The Times of India Jul 29 2014
Till 1993, judges were appointed to the Supreme Court and high courts by the President, read the Union government, after consulting the Chief Justice of India. The CJI seldom disagreed with the executive.
Two significant judgments dramatically altered the process. In 1993, a nine-judge bench in Supreme Court Advocates on Record Association case took away the executive’s primacy in appointment of judges and gave it to the CJI. In 1998, another nine-judge bench answered a presidential reference by laying down an elaborate procedure – the CJI-headed collegium system – to select and recommend to the government persons to be appointed as judges of the SC and HCs.
The executive was given the option of returning a name for the collegium’s reconsideration. If the name was re-sent, the executive was bound to appoint him. For the last 16 years, this judge-appoint-judge system has been in operation. Markandey Katju has experience of both the systems. He was appointed a judge of Allahabad High Court by the executive in 1991. But his later appointments -chief justice of Madras HC and transfer to Delhi HC and later as judge of SC in April 2006 – happened under the collegium system.
He often gave vent to his intolerance towards corruption. In March 2007, while sitting with Justice S B Sinha, he had said, “Everyone wants to loot this country. The only deterrent is to hang a few corrupt persons from the lamp post.
The law does not permit us to do it, but otherwise we would prefer to hang the corrupt.” Katju, who would have preferred instant Taliban style justice in the absence of limitations of law, strangely remained tight lipped for nearly a decade on a ‘corrupt judge’ continuing in Madras HC. His revelations have stirred a fresh debate on what would be the ideal process for appointment of judges to the SC and HCs? Both systems had their share of questionable products.
Two famous judges – Y V Chandrachud and P N Bhagwati – were appointed by the executive. They capitulated to political pressure much more gravely than Justice R C Lahoti, who was taken in by the then wily law minister H R Bhardwaj in 2005 and granted extension of service to a ‘corrupt judge” despite the collegium unanimously deciding not to continue with his services.
On April 28, 1976, a five-judge bench pronounced judgment in the ADM Jabalpur case and buried all fundamental rights, including the most fundamental among fundamental rights – the right to life – under political pressure of the Indira Gandhi regime which wielded draconian powers during Emergency. How on earth could a country survive without its citizens having the right to life? But the famous four – then CJI A N Ray and Justices M H Beg, Y V Chandrachud and P N Bhagwati – capitulated. They gave primacy to selfpreservation over preservation of citizens’ life.
Under tremendous political pressure and threat, Justice H R Khanna held his head high to record a dissent note saying right to life could never be suspended. He stood tall among the five, and is still standing tall in court number two of the Supreme Court. Khanna too was a product of the same system which had appointed the other four. Khanna valued life. The rewards of capitulation went to Justice Beg, who was appointed CJI by the Indira regime. If the government thought of humiliating Khanna by superseding him, it failed. He tendered his resignation. Khanna showed that a man’s character shines brightest in times of pressure and adversity.
The SC realized this six years later and spoke out in S P Gupta case [1982 (2) SCR 365].
“Judges should be stern stuff and tough fire, unbending before power, economic or political and they must uphold the core principle of rule of law which says ‘be you ever so high, the law is above you’,” it had said. Immortal words penned more than three decades ago, but seldom practiced.
Whatever process a political system devises for appointment of judges, it would lose its efficacy if it is manned by people who do not put country over self and place integrity above politics and posts.
As president of the Constituent Assembly, Rajendra Prasad, who went on to become the first President, had warned of this while moving for adoption of the Constitution in 1949.
He had said, “Whatever the Constitution may or may not provide, the welfare of the country will depend upon the men who administer it. If the people who are elected are capable and men of character and integrity, they will be able to make the best even of a defective Constitution. “If they are lacking in these, the Constitution cannot help the country, After all, a Constitution, like a machine, is a lifeless thing. It acquires life because of the men who control and operate it. And India needs today nothing more than a set of honest men who will have the interest of the country before them.”
Oct 2015: SC strikes down NJAC Act
The Times of India, Oct 17 2015
Dhananjay Mahapatra & Amit Anand Choudhary TNN
SC strikes down law giving govt say in picking judges Rift widens as NJAC Act declared `Unconstitutional'
Fears Political Meddling, Curb On Judicial Independence
The Supreme Court struck down the National Judicial Appointments Commission (NJAC) and ordered revival of the SCscripted two-decade-old `judges-selecting-judges' collegium system, rebuffing a unanimous Parliament decision to bring transparency in appointment of judges and potentially setting the stage for a confrontation between the executive and the judiciary . A five-judge bench, by a 4-1 majority declared the 99th constitutional amendment and the consequent legislation NJAC Act as unconstitutional on the ground that the NJAC had the law minister and two eminent persons as members who could join hands to reject the proposals of the judiciary , represented by the Chief Justice of India and two seniormost SC judges. Under the NJAC, any two members can veto a proposal.
The court held that the constitutional amendment and NJAC was a sure recipe for political meddling and executive interference in judi cial independence, which was part of the inviolable basic structure of the Constitution.
However, each judge acknowledged that all was not well with the collegium sys tem. The bench asked the government and petitioners to suggest in writing how to improve the system. Justices J S Khehar, Madan B Lokur, Kurian Jo seph and Adarsh Kumar Goel were unambiguous that inclusion of a politician (law minister) in NJAC was fraught with the danger of serious interference with the independence of judges.They recalled how the Indira Gandhi regime in the 70s had advocated appointment of `committed' judges.
Justice Chelameswar struck the lone dissent note, recalling the infamous ADM Jabalpur case of 1976 when the apex court had declared that right to life could be suspended during Emergency and said, “In difficult times, when politi cal branches cannot be counted upon, neither can the judiciary .“
However, the other four judges were convinced that the NJAC would be a disaster for the independence of judiciary and the justice delivery system as a whole.
Justice Khehar, in his 440-page judgment, made light of the fact that Parliament had unanimously backed NJAC. He said for judicial scrutiny of the constitutional validity of a law, it was inconsequential whether it was passed with a waferthin majority , brute majority or unanimity . On inclusion of the law minister and two eminent persons in the NJAC with any two members empowered to veto a proposal mooted by the CJI and two senior-most judges, Justice Khehar said it breached the primary mandate of the Constitution to give primacy to the CJI in appointment of judges.
He and Justice Lokur faulted the inclusion of the law minister in the NJAC, saying the government was the biggest litigant and, hence, participation of its representative in NJAC would render the justice delivery system suspect.
The court said the minister's participation could raise the “conflict of interest“ handicap against those judges from hearing cases against the government.
Arguments against the collegium system
Collegium system has not worked well: SC
The Times of India, Jun 17 2015
The Supreme Court has acknowledged the collegium system of judges appointing judges, which Parliament has replaced with National Judicial Appointments Commission (NJAC), has not worked well, reports Dhananjay Mahapatra.“The (collegium) system is good, but the implementation has gone wrong,“ a fivemember SC bench said. P 11 Senior advocate Fali S Nariman, lead lawyer for petitioners questioning the constitutional validity of the National Judicial Appointments Commission (NJAC), was made to face his own bitter criticism of the Supreme Courtdrafted collegium system for appointment of judges. Former solicitor general T R Andhyarujina and additional solicitor general Tushar Mehta cited excerpts from Nariman's autobiography `Before Memory Fades' to drive home the point that not only had Parliament and 20 states ratified the NJAC to re place the collegium system but Nariman, the lead opponent of NJAC, too was against the collegium system.
Nariman was the counsel who argued for petitioner `Supreme Court Advocates on Record' in the 1990s, leading to formulation of the collegium system by a nine-judge constitution bench. Prior to the collegium system, the executive appointed judges in consultation with the CJI.
In his book, Nariman had devoted an entire chapter to express disappointment at the working of the collegium system. He wrote, “I would suggest that the closed-circuit network of five judges should be disbanded.“
Nariman was unperturbed by the opponents' remarks. He told TOI he had made his views clear to the SC during initial arguments against the NJAC in which the primacy of judiciary in appointment of judges has been erased. He said he still felt the collegium system had not worked well. But that did not mean that the present form of NJAC was a good sub stitute, he said.
Collegium system good but implementation faulty : SC
The Times of India, Jun 17 2015
Dhananjay Mahapatra
AG submits list of bad appointments
During hearing of a bunch of petitions challenging the validity of the NJAC, the Centre and states have slammed the collegium's nontransparent and non-accountable manner of appointing judges to the Supreme Court and high courts. The attorney general even submitted a list of bad appointments to the five-judge Constitution bench hearing the matter.
“One is the (collegium) system itself. The other is the implementation of the system-provided procedure.The National Commission to Review Working of the Constitution headed by Justice M N Venkatachaliah had said when the collegium system was devised by the Supreme Court, it was hailed the world over as a unique and good system,“ the bench of Justices J S Khehar, J Chelameswar, Madan B Lokur, Kurian Joseph and Adarsh K Goel said. “So, the (collegium) system is good, but the implementation has gone wrong. That does not mean the system is bad,“ the bench said in response to senior advocate T R Andhyarujina's argument that evolution of the collegium system was neither legally justified nor had worked satisfactorily . The court pointed out that the qualification for `eminent person' did not specify whether they should be Indians.“Can a foreigner be appointed as eminent person in NJAC?“ the bench asked.
Justice J Chelameswar’s dissenting judgment/ 2015
The Times of India, Oct 17 2015
AmitAnand Choudhary
Lone SC judge who batted for judicial appointments panel In his lone yet strong dissent judgment against the collegium system, Justice J Chelameswar said appointment of judges should not remain the exclusive domain of the judiciary . The govern ment and civil society members must have a say in it. Faulting the functioning of the collegium system, he said while it had no accountability, there were instances where it had failed. He spoke for an urgent need for re form in the system and lamented that SC didn't approve of the NJAC, which was a step in that direction.
“The nation has witnessed many unpleasant events connected with judicial appointments -events which lend credence to speculation that the system established by the Second and Third Judges cases in its operational reality is perhaps not the best system for securing an independent and efficient judiciary,“ he said.
Terming the collegium system non-transparent, he said correspondence between the government and CJI and records of the consultation process were some of the country's best-guarded secrets.
“Transparency is an aspect of rationality. The need for transparency is more in the case of appointment process.Proceedings of the collegium were opaque, inaccessible to public and history, barring oc casional leaks,“ he said.
“The records are beyond the reach of any person, including the judges of this court, who aren't lucky enough to become CJI. Such a state of affairs doesn't either enhance the credibility of the institution nor is it good for the people,“ he said.
The judge said the judiciary couldn't claim to be the sole protector of people's right and referred to instances where the SC had failed to live up to citizens' expectation in preserving liberties.
To assert that the judiciary alone is concerned with the preservation of liberties and does that job well is a dogmatic assumption bereft of evidentiary basis. To eliminate the executive from the process of selection “would be inconsistent with the foundational premise that government in a democracy is by chosen representatives of the people“.
He said the fiasco created by the collegium in the appointment of Justice P D Dinakaran and appointment of a Madras HC judge were part of judicial records. There were many other cases when undeserving people were appointed judges.
“More instances were mentioned at the bar during the hearing to demonstrate not only the shallowness of the theory but also recommendations by the collegium have not necessarily always been in the best interests of the institution and the nation. It is not necessary to place on record all details, but it's sufficient to mention that the earlier mentioned two cases aren't the only examples of the inappropriate exercise of the power of the collegium,“ he said.
Justice J Chelameswar finds collegium procedure opaque/ 2016
In a stunning revelation, the Supreme Court's fifth-most senior judge, Justice J Chelameswar, told The Times of India that he has stopped attending meetings of the collegium headed by the Chief Justice of India as he finds its procedure “most opaque“, and the “majority gangs up“ to shoot down genuine objections against undesirable candidates being chosen to be judges of higher courts.
The collegium [in 2016] comprised CJI T S Thakur and Justices A R Dave, J S Khehar, Dipak Misra and Chelameswar. Breaking ranks with his colleagues in the collegium, which decides on the selection of judges to the SC and HCs, Chelameswar told TOI of his unhappiness over the entire process.
“I have written a letter to the Chief Justice on Thursday informing him that I will not be participating in the collegium's meetings henceforth.The system of selection of judges is not at all transparent.No reason, no opinion is recorded. Just two people decide the names and come back to the meeting and ask for a yes or no. Can a judge of the Supreme Court or high court be selected in such a manner?“ he asked. If a known corrupt person is being considered for ap pointment as a judge of the Supreme Court and if one of the members of the collegium says he has evidence to back his opposition to his appointment, should such a person's selection be decided on the basis of majority or rejected on the basis of the merit of the evidence given by the single member of the collegium?“ “My experience shows at people gang up in the col that people gang up in the collegium and selections are done without anyone recording his view and the basis of that view. The outside world does not know what is happening inside the collegium. The inside world too does not know much. Two people sit and decide the names and then ask others to give their yes and no to the names,“ he said. “Are we doing anything good for the country through this selection process?
Should it not be on the basis of merit? What if a person who is opposing a name has the most valid grounds? Can such valid grounds be brushed aside by majority or through expression of yes or no“ -were a few of the many questions Chelameswar asked. He had found no answer for his questions within the system, forcing him to inform the CJI that he would no be longer available for collegium meetings. He would, however, continue to go through the files relating to selection of judges and record his views on them.
Justice Chelameswar was the sole judge to record his dissent against the collegium system and to support the National Judicial Appointment Commission (NJAC) as a better alternative while sitting on a fivejudge constitution bench last year. Justices Khehar, Madan B Lokur, Kurian Joseph and Adarsh Goel had struck down NJAC although Joseph had agreed with Chelameswar that the collegium was an opaque system.
So what had sparked the sudden outburst? Was it because certain undesired persons got selected by the collegium, TOI asked Chelameswar, to which he said: “I am not happy with the manner in which the collegium selects persons for appointment as judges.
It's been going on for 20 years, but that's no solace for me to keep silent. I am not on individual names. I am raising an issue at a much higher level. The question is, are we doing something good for the country?“
Collegium system: Nariman on its pitfalls
The Times of India, Nov 04 2015
Dhananjay Mahapatra
Nariman on the Dinakaran's case and the collegium
Lone Dissenting Judge's View More Sound
Fali S Nariman who opposed the NJAC tooth and nail, unabashedly praised Justice J Chelameswar's lone dissent ing judgment pointing out ma ladies in the collegium system and argued that it must be an eye-opener for urgent reforms in the opaque judges-selec ting-judges system. Nariman said judges in the selection body must be recep tive to views of others. “I will give the last word to the dissenting judgment, because it has got more acceptability,“ Nariman said and went on to narrate the dark phase of the collegium, which, when headed by CJI K G Balakrishnan, had in August 2009 recommended appointment of Justice P D Dinakaran as an SC judge. Dinakaran faced a motion for his removal in Parliament on charges of corruption. The Rajya Sabha chairman had set up an inquiry committee headed by Justice Khehar.Before the inquiry was completed, Dinakaran resigned, putting an end to an inglorious chapter in judiciary.
Nariman gave hitherto unknown details of what was going on then in the collegium.“In Dinakaran's case, I must say something. Very eminent people from Chennai wanted to say something about Dinakaran to the then CJI. Neither the CJI nor any of the five members of the then collegium agreed to meet them. I went and requested the CJI to meet them. But we were all hounded out. If we had gone to the press about the attitude of the collegium members, it would have broken up, collapsed. I was so disgusted that in anger I said I would not appear in the courts of the CJI or any other member of the collegium if Dinakaran was appointed judge.Some judges made nasty comments about me,“ he said.
“The Dinakaran episode told us there was lack of receptivity in the collegium. If a responsible member of the bar wants to tell the collegium about a person being considered for the post of a judge, why should the collegium members not hear him out,“ he asked.
Nariman said judges in the selection body must be recep tive to views of others. “I will give the last word to the dissenting judgment, because it has got more acceptability,“ Nariman said and went on to narrate the dark phase of the collegium, which, when headed by CJI K G Balakrishnan, had in August 2009 recommended appointment of Justice P D Dinakaran as an SC judge.
Dinakaran faced a motion for his removal in Parliament on charges of corruption. The Rajya Sabha chairman had set up an inquiry committee headed by Justice Khehar.Before the inquiry was completed, Dinakaran resigned, putting an end to an inglorious chapter in judiciary.
Nariman gave hitherto unknown details of what was going on then in the collegium.“In Dinakaran's case, I must say something. Very eminent people from Chennai wanted to say something about Dinakaran to the then CJI. Neither the CJI nor any of the five members of the then collegium agreed to meet them. I went and requested the CJI to meet them. But we were all hounded out. If we had gone to the press about the attitude of the collegium members, it would have broken up, collapsed. I was so disgusted that in anger I said I would not appear in the courts of the CJI or any other member of the collegium if Dinakaran was appointed judge.Some judges made nasty comments about me,“ he said.
“The Dinakaran episode told us there was lack of receptivity in the collegium. If a responsible member of the bar wants to tell the collegium about a person being considered for the post of a judge, why should the collegium members not hear him out,“ he asked.
How executive lost control over judicial appointments
The Times of India, Oct 17 2015
Indira killing, Babri case, graft strengthened Judiciary's hands
In the early decades after the adoption of the Constitution, judicial appointments were the government's prerogative, judges being designated on the President's recommendation before politically-tainted decisions set the stage for the judiciary snatching the right from the executive.
Ajit Ninan Provisions of the Constitution under Article 124(2) and 217(1) clearly say that while the judiciary should be consulted, the final say vests with the government, the President appointing judges by warrant under his hand and seal. This is how it was from 1950 to 1993.
The intrusion of political considerations saw the term “committed judiciary“ gain currency during Indira Gandhi's tenure as PM, generating a backlash strengthened by the Emergency . The executive hold was further tightened with consultation with judiciary being held as not tantamount to consent.
Political developments from Indira's assassination in 1984 to the installation of a Janata Dal government in 1989 to the return of Congress and the appointment of Narasimha Rao as PM saw a string of corruption scandals make news and influence public opinion adversely on legislators and Parliament.
Congress under Rajiv Gandhi lost the 1989 polls with the Bofors scandal symbolizing the opposition's agenda. Once the unstable V P Singh government fell, the Rao regime was rocked by cases like cash for votes in a no-confidence motion and hawala scandal.
Governments of the day found their legitimacy eroded following events like the Babri Masjid demolition.Corruption scandals left the political class with little will and moral authority to protest against the judiciary's moves to appropriate the power to appoint judges. In 1993, when SC ruled that primacy in appointing judges vested with the judiciary , Rao's government was still reeling under the Babri demolition aftermath as it fended internal challenges and the opposition.
For much of his tenure, Rao had to deal with the saffron threat and efforts of par ty dissidents to unseat him.
The setting for UPA 's bid to legislate the NJAC bill was not very propitious either as Manmohan Singh's government in its second term found itself battling one scam after another. As its political capital drained, BJP saw no reason to help with passage of the NJAC, though it supported the legislation in principle.
Armed with a majority , BJP felt it was better placed to push through the NJAC and mounted a spirited bid in the court arguments. Passage by state governments bolstered its case, but SC has tenaciously defended its turf.
2016
2016, June: Govt repeats `no' to collegium's pick for HC CJ
The Times of India, Jun 06 2016
Pradeep Thakur
Govt repeats `no' to collegium's pick for HC CJ
In a first, the government has rejected a recommendation of the Supreme Court collegium for appointment of a high court chief justice for the second time.
This comes at a time when the government and judiciary are locked in a standoff over certain clauses in the Memorandum of Procedure that will guide appointments to the higher judiciary.
The collegium, comprising the four seniormost judges of the apex court and headed by the Chief Justice of India, had recommended a judge's name for appointment as chief justice of a prominent opposition-governed state. The government turned it down. The collegium reiterated its recommendation, which makes it binding on the government to appoint the judge in question.
However, the government has asked the collegium to reconsider its decision as at least two sitting SC judges have expressed reservations about the judge. The government is de termined to question the rationale of the collegium negating the views of its brother judges who expressed serious reservations about the elevation of a judge in view of his alleged questionable integrity , according to sources.
Two sitting Supreme Court (SC) judges, who are believed to have worked with the judge in question in their previous assignments at another high court, have written to the collegium saying the judge should not be elevated as chief justice.
The objections of the two SC judges were also forwarded to the government along with the recommendations.
One of the clauses in the government-drafted Memorandum of Procedure (MoP), which was on May 25 returned by the Chief Justice of India to the government rejecting almost all major suggestions, talks about merit being the prime consideration for all appointments to the higher judiciary.
Besides, the MoP suggests that the exclusive collegium, both in the SC and in high courts, must consult all judg es on putting together a list of suitable candidates before getting on to the shortlisting process.
The government had, in the draft MoP, also proposed to reserve the right to reject any recommendation of the collegium in the “national interest“ which too is believed to be one of the points of discord.
The government seems to be in no hurry to settle the MoP row even as it has decided to clear pending recommendations for appointment of judges to the apex court and high courts based solely on merit, using its own vetting mechanism. It has already fast-tracked appointment of at least 170 judges recommended by the collegium in the past three-four months, considering that at least 40% judges' posts are lying vacant in 24 HCs.
