Judges’ appointment: Govt proposes Centre, state say in selection

The NDA government is understood to have recommended that both the Centre and state governments should have a say in recommending candidates for appointment to the higher judiciary. A draft memorandum of procedure laying down the broad framework to facilitate the appointment of Supreme Court and high court judges by the collegium has been sent to the Prime Minister’s Office by the Union law and justice ministry for clearance.

The revised draft, which was recently approved by an inter-ministerial group, is soon expected to be handed over to the Chief Justice of India for his final approval, sources said. The MoP aims to guide the collegium in the appointment of judges.

The apex court had asked the government to rework the MoP in consultation with the states and high courts while delivering its verdict on ways to make the collegium system more transparent.

The draft MoP suggests that the attorney-general at the Centre and advocates-general in the states should have a say in recommending candidates for appointment and elevation of judges of the Supreme Court and high courts.

If the Supreme Court accepts the draft, then effectively the government can also suggest candidates as the AG is the top law officer appointed by the government.

In the appointment of judges to the high court, all high court judges as well as the respective state AGs will be free to recommend their candidates, it says.

While the draft MoP has been finalised by an inter-ministerial group headed by external affairs minister Sushma Swaraj, sources said that it is likely to undergo changes before being sent to the CJI for approval.

The draft also states that any dissent note to a recommendation of the collegium to appoint or elevate a judge should be mandatorily shared with the executive. It also recommends that up to three judges in the Supreme Court should be from the bar.

As reported by this newspaper earlier, the government has decided not to bring the collegium appointments under the RTI ambit as it apprehends it could lead to a flood of applications from aspirants and “interested parties” seeking details.

The draft also proposes evaluation of judgments delivered by a high court judge during the last five years and initiatives undertaken for the improvement of judicial administration should be the yardstick for promotion as chief justice, while suggesting that seniority should also be kept in mind.

The document stresses the need for merit as a major yardstick for the appointment of judges. Another suggestion is that a high court should not remain without a chief justice for more than three months.

Some of the issues highlighted by the draft MoP are transparency in the appointment process, eligibility criteria, a permanent secretariat for the collegium and a process to evaluate and deal with complaints against candidates.