The final draft of the Memorandum of Procedure for selection of Supreme Court and High Court judges has reached the Prime Minister Office for approval, following which the Government will send it to the Chief Justice of India for clearance.
The existing MoP was amended following the Supreme Court decision allowing Centre to make suitable changes after it received representations from across the country seeking more transparency in judicial appointments, fixing eligibility criteria for selection of judges, having a complaints mechanism to deal with errant judges, and the need for setting of a permanent secretariat to assist Supreme Court on judicial appointments.
According to sources, the draft MoP stresses on a more constructive role played by Centre and state governments in recommending candidates for both the Supreme Court and High Courts, respectively. The practice so far had been for the Scollegium of Supreme Court judges (Chief Justice of India and four senior most judges) to recommend names to the Centre based on its own assessment or the assessment made by HC collegium.
The draft of the new MoP allows Attorney General at the Centre and Advocate Generals in states to have a say in recommending suitable names for judgeship. The revised MoP, was recently approved by an inter-ministerial group headed by External Affairs Minister Sushma Swaraj, following which the law Ministry made changes and has forwarded it to PMO for approval. Once all changes have been incorporated, the final copy of the revised draft will be sent to CJI, whose consultation is also necessary before finalizing the draft.
As a measure of transparency, the draft MoP has recommended that the collegium while recommending a name for HC or SC judge will be required to share with the Executive even the dissent note of any collegium member against the candidate. However, on the question of bringing the collegium proceedings under RTI ambit, the draft MoP shies away on the apprehension that “interested parties” could seek file notings and other details of candidates jeopardizing their right to privacy.
As a measure of eligibility criteria, the draft, for the first time, introduces a quota for elevation of deserving senior advocates from the Bar to the Supreme Court, of up to three judges. In recent times, two lawyers were appointed directly as Supreme Court judges, which otherwise has only occurred once in the history of the Supreme Court. For elevating HC judges to Supreme Court, the revised MoP fixes certain yardsticks such as evaluation of judgments delivered by the said judge in the preceding five years and initiatives, if any, undertaken by the said judge to improve judicial administration. Besides, seniority will be an added criterion and will take a backseat to merit.
The need for permanent secretariat will also reflect in the draft MoP while a final decision is pending on how to deal with complaints against judges.