Centre writes to SC to review selection of judges yet again

The Centre has again written to the Supreme Court collegium asking it to review the current system of judges appointing judges, a major point of friction between the government and the judiciary.

The latest communiqué from the law ministry cites a July 5 judgment of the SC in which two judges had called for “the need to revisit the process of selection and appointment of judges”. The Centre wrote to the court registrar general last week asking if the SC collegium — a body of India’s five top judges that clears judicial appointments to the high courts and the SC — would like to review its position.

In the justice (retd) CS Karnan contempt case, justices Jasti Chelameswar and Ranjan Gogoi wrote on the need for an “appropriate legal regime” other than impeachment to deal with errant judges. Impeachment is a very slow process and no one has ever been impeached in the country.

Parliament had passed the National Judicial Appointments Commission Act in the first year of the BJP-led government’s tenure and it came into effect on April 13, 2015. But the law, which aimed to end the two-decade old collegium system, was struck down by a five-judge SC bench headed by justice JS Khehar in October, 2015.

In a separate order on December 16 the same year, the bench asked the government to come up with a fresh memorandum of procedure (MoP), the guiding document for such appointments. The law ministry sent a draft MOP to the collegium. After several rounds of to and fro between the two sides since January 2016, the collegium sent back the draft to the ministry reiterating its objections in March after which the ministry did not respond.

Judicial appointments continue to be based on the old MOP, which both the executive and the judiciary agreed long ago needs drastic improvements. The government appointed 17 judges in the SC and nearly 250 judges in the HCs in the past three years.

The Centre believes the July 5 judgment offers a window to break the deadlock. “The court itself concurs that this system (of appointments) is not correct…We have to keep trying,” a senior law ministry official said.

The collegium in its March 13 response is learnt to have objected to a clause in the draft that says the government can override a recommendation for appointment on the grounds of “national security.” The collegium wants the government to provide evidence backing its objection rather than allow the executive the power to decide on a judge’s appointment.