NDA memorandum: Judiciary-govt face-off brewing over appointments
The NDA government’s new memorandum of procedure for appointment of Supreme Court and high court judges is likely to face stiff opposition from the judiciary as the proposed mechanism would undermine the collegium system.
Sources privy to the development said the collegium headed by the Chief Justice of India has strong reservations over the draft MoP (memorandum of procedure) giving the last word to the government to reject candidates on the grounds of national security.
“This will be against the Supreme Court constitution bench verdict of 1998 that said the government cannot turn down a recommendation if the collegium reiterates it,” a source said.
The question of appointing any person with questionable credentials would never arise, the source said.
“The government must disclose the evidence to prove the person recommended is a threat to national security. It cannot be on the basis of hearsay.”
As per the procedure, names of judges are always forwarded to the government for obtaining intelligence inputs on their bona fides and checking credentials.
An inter-ministerial group headed by the ministry of external affairs has sent a draft MoP to the Supreme Court collegium. A five-judge bench of the top court had in December ordered the Centre to revise the MoP to ensure transparent functioning of the collegium system.
The direction was issued while the bench quashed the new law aimed to end the decades-old opaque system of appointing judges and give a greater say to the executive in the process.
The Memorandum of Procedure is an administrative mechanism evolved jointly by the collegiums and the Union government.
Sources said a bone of contention on the MoP is the necessity to record the dissenting note of a collegium member if a name is approved.
Senior judges also have reservations over the executive making it mandatory to appoint advocates directly to the top court.
The collegium has discussed the MoP and is expected to meet soon to take a final view on it.
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