At present, a panel of five senior-most judges of the SC (called the collegium) finalises the names of judges to be promoted to the apex court and also clears the names for appointments in high courts. The government feels it has virtually no say the way the current procedure is being followed. The law ministry’s repeated efforts to amend the memorandum which had laid down the procedure for judges appointment in 1999, in a bid to allow the government some say in the appointments, did not find favour with the outgoing CJI.
“I have seen the note seeking revision of the memorandum of procedure for appointments. I have also gone through the Attorney General’s opinion. Though a few suggestions are valuable, they can’t stand in the teeth of the three SC decision on this issue,” Justice Kapadia had informed the government.“In the interest of transparency, if at all the law ministry wants its suggestions to be implemented, it may move the SC on the judicial side (by filing a fresh petition,” he wrote.
Similar stand was taken by Justice Balakrishnan before his retirement in May 2010. “The hon’ble CJI has declined to entertain the note sent to him for his perusal and comments for amending the memorandum,” stated an internal note by the Justice Department.
The law ministry wanted to increase the government’s role in judges’ appointment and had proposed that the law minister “in anticipation of a vacancy in the SC or high courts may recommend names to respective chief justices of who could be found suitable for appointment.”