Law minister seeks govt nominees in court collegium

Subject: Polity

Section: Judiciary

Concept:

Union Law Minister has written to Chief Justice of India (CJI) to suggest a nominee of the Union government in the Supreme Court Collegium and a State representative in each of the High Court collegiums.
The letter offered the suggestion since the Memorandum of Procedure (MoP) is pending finalisation.
This letter is only part of an ongoing dialogue between the Government and the court regarding appointments and it is yet to be discussed by the Collegium.

Key suggestions given by Law Ministry

The search and evaluation committee for High Court judges should include a nominee of the Central and respective state governments.
For shortlisting of judges for the Supreme Court and Chief Justices of High Courts, this committee should include a nominee of the Centre.
At present, the names are vetted by the Collegium, either of the High Courts or the Supreme Court, which comprises senior judges.
The committee will, in turn, make its recommendations to the High Court or Supreme Court Collegium as the case may be.
The final decision will still vest with the Collegium.

Memorandum of Procedure (MoP)

The MoP is the official playbook agreed upon by the government and the judiciary on the appointment of judges.
It is a crucial document that governs the collegium system of appointing judges.
Since the collegium system evolved through a series of ruling by the Supreme Court, and is not based on legislation, the MoP is the bedrock of the process of appointments.
MoP fixes the protocol under which the collegium system works.

Current status of MoP

In October 2015, SC struck down the constitutional amendment that had brought in the National Judicial Appointments Commission (NJAC).
NJAC act had provided for a six-member panel, including the Law Minister and two independent persons, to appoint judges to the SC and the High Courts.
It sought to change the system of appointment of judges to the higher judiciary by giving the government a say in the appointment process.
After NJAC judgement, the apex court had directed the government to finalise the existing MoP by supplementing it in consultation with the Supreme Court collegium.
The new MoP is to take into consideration eligibility criteria, transparency, establishment of a new secretariat and a mechanism to deal with complaints against proposed candidates.
So far, the Supreme Court and the Government have failed to reach at a consensus on revision of the MoP.
A key point of contention was the inclusion of a national security clause that could thwart an appointment.
Currently, the government’s stand is that the MoP is “pending finalisation”.