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New guidelines for appointing judges unlikely in current CJI’s tenure

With executive-judiciary differences over fresh guidelines unresolved, the Narendra Modi government appointed 200 HC judges based on old guidelines.

india Updated: Jul 02, 2017 13:22 IST
Jatin Gandhi
Chief Justice of India JS Khehar, who retires on August 28, ruled in favour of  a fresh Memorandum of Procedure for appointment of judges.
Chief Justice of India JS Khehar, who retires on August 28, ruled in favour of a fresh Memorandum of Procedure for appointment of judges. (PTI Photo )

When Chief Justice of India JS Khehar retires next month, the improved guidelines for appointing judges that he ruled in favour of before he began his tenure as CJI would still be pending.

Sources in the law ministry say the government is nowhere close to resolving the differences between the executive and judiciary over the matter.

“A response from the government to the Supreme Court collegium is unlikely before the CJI retires,” a senior official said. The collegium is a body of India’s five top judges that clears judicial appointments to the high courts and the SC.

After a bench headed by Justice Khehar ruled on December 16, 2015 in favour of a fresh Memorandum of Procedure (MoP) – the guiding document for such appointments, the law ministry prepared a draft that was sent to the collegium.

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 has appointed 17 judges in the SC and nearly 250 judges in the HCs in the last three years, a majority of them after the December 2015 judgement ordering a revamp of the guidelines.

After several rounds of to and fro between the two sides since January 2016, the collegium had sent back the draft to the law ministry, reiterating its objections in a note in March.

The collegium 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.” It wants to have a final say in the matter and the power to overrule the objection.

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.

In June, the collegium withdrew two of its recommendations for appointment to the Allahabad high court based on feedback from the government.

Law minister Ravi Shankar Prasad a fortnight ago said the case of Justice CK Karnan – who was awarded a jail term by the Supreme Court as a sitting HC judge -- highlights the need for greater scrutiny in judicial appointments.

At the same press conference, called to highlight achievements of his ministry in the last three years, Prasad also said that the MOP continues to be “a work in progress.”

The judiciary has also objected to a clause that calls for setting up of a secretariat for vetting and clearing names for judges before the collegium takes them up and forming a committee of SC judges who are not part of the collegiums to screen complaints against sitting judges.

Parliament had passed the National Judicial Appointments Commission Act (NJAC) in the first year of the current government’s tenure and it came into effect on April 13, 2015.

But the law which effectively aimed to end the two-decade-old collegium system of appointments was struck down by the five-judge SC bench headed by Justice Khehar as unconstitutional in October 2015.

In a separate order on December 16 that year, the bench asked the government to come up with a fresh MOP in consultation with the CJI.

“The December 2015 order was passed by the bench headed by Justice Khehar, we had hoped the differences would be resolved during his tenure,” the official said.

The CJI retires on August 28.