Amid a raging debate on judicial appointments, the government today said it is drawing its power to supplement the present document to guide designating judges to the higher judiciary from a Supreme Court judgement which had stressed on bringing transparency and accountability in the process.
Referring to the revised draft of the memorandum of procedure (MoP), highly-placed sources in the Law Ministry today said the document is based on the "judicial directions" given by a Supreme Court bench.
As the Executive and the Judiciary seek to iron out differences on key clauses of the MoP, the sources pointed the December, 2015 apex court order on ways to improve the collegium system had said the system of appointing judges should be transparent, with accountability and should have a wider zone of consideration of candidates to be appointed to the bench.
Detailing the stand of the government, the sources said the Centre wants that names of candidates should come from all Supreme Court and high court judges.
They explained that all judges of a particular high court should be at liberty to suggest names to the high court collegium, which will eventually take a call on whom to recommend for appointment. Same should apply for the Supreme Court.
The Madhya Pradesh High Court is following the same principle, they said. The government had on August 3, sent a revised draft of the MoP to the collegium, reiterating certain clauses on which the judiciary had objections.
The sources said the chief ministers, as also advocates general, should also be allowed to suggest candidates to the high court collegium of their respective states. The Attorney General, the sources said, should be allowed to suggest names of candidates for the Supreme Court.
While agreeing to the demand of the SC collegium that seniority-cum-merit and not merit-cum-seniority should be the criteria for selection, the government has said that geographic reasons -- for example, too many judges from a particular high court, inclusion of SCs, STs and women, outstanding performance of a judge and poor performance of a Chief Justice could used as grounds to overlook seniority. The reasons can be recorded in writing.
While leaving it to the judiciary to fix an age at which a person can become a judge, the government has made it clear that the age once fixed should not be flexible. This, the sources said, will check favouritism.
Despite the Chief Justice of India rejecting the clause on having evaluation and appraisal committees that the Supreme Court and high court level, the government has once again pressed for it.
The committees can have either retired or serving judges, which the Chief Justice of a high court or the CJI in case of the apex court can decide.
The committee at the Supreme Court will screen the candidates before the names are sent to the SC collegium for a final call, it will also go through the records of the committees of the high courts as part of the 'double filtration' process to ensure that meritorious names are not left out.
The issue of disposal of complaints have been left to the in house mechanism of the judiciary to tackle, they said.
Against the back drop of outburst by CJI T S Thakur on delayed appointment of judges, the sources said between August, 2014, when the National Judicial Appointments Commission law came into being and December, 2015 when the SC order on ways to improve collegium system was delivered, the government had no say in stalling judicial appointments.
In January, then Law Minister D V Sadananda Gowda had written to the CJI, saying till the new MoP is finalised, appointments can place based on the prevailing MoP.
They said between January and now, 52 judges have been appointed to the high courts, four to the Supreme Court and 110 additional judges in high courts have been made permanent judges.
Nine high court chief justices have been confirmed and 28 transfers affected. A total of 250 proposals are in the pipeline, they said.