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SC collegium unhappy with govt’s draft procedure

Both the government and the collegium are unanimous in their view that the appointments should be kept out of the purview of the Right to Information Act.

Written by Maneesh Chhibber | New Delhi | Published:May 6, 2016 4:48 am
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THE SUPREME Court collegium is learnt to be unhappy with what it sees as the government’s attempt to control appointments in the higher judiciary through some clauses of the draft memorandum of procedure (MoP). Chief Justice of India T S Thakur, sources said, is set to write to the government, expressing the collegium’s unanimous views against the draft MoP.

It is learnt that the collegium, which met recently to deliberate on the issue, is of the view that the MoP, as drafted by the government, is an attempt by the NDA government to circumvent judicial pronouncements and settled law on appointments in the higher judiciary, especially after a five-Judge bench of the Supreme Court last October declared as “unconstitutional and void” the National Judicial Appointments Commission (NJAC) Act passed by Parliament last year.

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The bench, headed by Justice Jagdish Singh Khehar, had also directed that a new MoP be finalised by the government in consultation with the CJI. Sources told The Indian Express that CJI Thakur and four senior-most Judges of the Supreme Court held extensive deliberations on the MoP recently. The view that emerged was that the draft wasn’t “acceptable” in its present form and would have to undergo many changes in order to bring it in compliance with the various judicial pronouncements on appointments in higher judiciary.

The draft MoP, while making no attempt to make the appointment system more transparent — one of the main complaints against the collegium system, voiced during the Parliament debate on NJAC Act, was that it was too opaque — allows the government to reject any name recommended by the collegium on grounds of national security. The draft, which was sent by the government to the CJI on March 22, also says that in case the government rejects a recommendation, the collegium can’t send it again.

Sources said the collegium feels this is too broad a contour and will vest the government with power to veto any name that it doesn’t like, without assigning any reason. It also feels that allowing the Executive to hold such power would weaken the judiciary’s independence.

However, both the government and the collegium are unanimous in their view that the appointments should be kept out of the purview of the Right to Information Act.

“Many clauses of the draft are repugnant to the judgments in the Second, Third and Fourth Judges cases. The government draft is an attempt by the government to control the appointments through the back door, even though the law is clearly against it. If the collegium agrees to that, it would mean going against the judgments. How can that be acceptable?” said a source in the judiciary, who is aware of the development.

“We will study the issues raised by the collegium after they reach us and take a view according to law. However, the draft sent by us was prepared in consultation with legal experts and we aren’t aware of any legal issues with it. But, let us wait,” said a senior government functionary who is dealing with the issue.

The officer also said the collegium’s objections would be placed before the Group of Ministers headed by External Affairs Minister Sushma Swaraj.