Rijiju writes to CJI, wants panels with govt reps to advise collegium on judges’ appointments


New Delhi: The Union law ministry has written to the Chief Justice of India (CJI) Dhananjaya Y Chandrachud, asserting the need to have a search-cum-evaluation committee (SEC) supreme courtfor bringing in more transparency and objectivity in the process of judicial appointment through the collegium system.

Pointing out that the finalisation of the Memorandum of Procedure (MoP) regarding appointment of judges is still “pending”, Union Law Minister Kiren Rijiju has, in a letter to Chief Justice of India (CJI) D.Y. Chandrachud, suggested inclusion of a government representative in the “search-cum-evaluation committee” that will provide inputs on “suitable candidates” to the appointment panel or the collegium.

In a letter dated January 6, the Centre underlined that the government is an “important stakeholder in the process of appointment of judges in the Supreme Court and high courts” and therefore, its views should also find a place in preparation of the panel of names who are eligible for being appointed as judges of the constitutional courts.

According to people aware of the matter, the letter stated that a representative of the Union government should be a member of the SEC for appointment of judges in the Supreme Court and chief justices of high courts. The SECs for appointment of judges in the high court should also have a nominee of the state government, as per the letter.

The letter, however, did not ask for government representatives in the collegium itself, as suggested by some media reports.

“SECs will be entrusted to prepare a panel of eligible candidates from which the respective collegiums will make recommendations…the collegium at appropriate level may address the above requirement of drawing up a panel of eligible candidates from above mentioned sources and draw up their proceedings by rendering requisite reasons and thereafter send the proposal to the government with requisite documents,” said the letter.

Referring to its previous missives to the SC collegium in 2017, 2018 and 2021 regarding the SEC, the letter added: “You will appreciate that the structuring of all connected threads, once accomplished, will pave the way for expedition,” stated the government’s letter to the CJI. The collegium in the Supreme Court comprises the CJI and the other four most senior judges of the court.

The government’s letter marks yet another chapter in the ongoing confrontation between the executive and the judiciary over the judges’ selection mechanism and the division of powers between the two. The row, over the last few months, witnessed Vice President Jagdeep Dhankar and Union law minister Kiren Rijiju questioning the collegium system of appointing judges, while the top court responded with stern reminders to the government that the collegium system is the law of the land that must be followed by the government “to a T”.

While there is a department in the Supreme Court to assist the collegium in considering the names, the government, through its January-6 letter has pressed for institutionalising the process by creating a pool of names that will be forwarded to the collegium for finalising the appointments. It has also proposed that other senior judges outside the collegium may also send their recommendations to the SEC concerned.

The letter, according to the people aware of the matter, stressed that the government has repeatedly highlighted the need to have a SEC in its previous suggestions on supplementing the memorandum of procedure (MoP), which guides the appointment of judges in the constitutional courts.

Following the December 2015 order of the Supreme Court regarding the reforms that were required to be made in the existing collegium system, the government said, it has already given its inputs but they were yet to be considered.

In 2014, the NDA government passed the National Judicial Appointment Commission (NJAC) Act, setting up an alternative system for appointment of judges to constitutional courts which had also proposed a greater role for the government in the process. But in 2015, the Supreme Court ruled that the law was unconstitutional as it sought to tinker with the independence of the judiciary.

At the same time, the court admitted that the existing system of judicial appointment required certain reforms, and agreed to review the MoP to address concerns with respect to some aspects, namely eligibility criteria, measures for transparency, establishment of a Secretariat, and a complaint mechanism.

Later, a series of exchanges took place between the government and the collegium to amend the MoP. While the collegium sent its last draft of the MoP to the government in March 2017, the law ministry flagged the issue of SEC through its letters in July 2017 and August 2021. These previous communications pointed out that SEC will streamline the search and selection process and is expected to make it transparent, expeditious and objective.

The letters in 2017 and 2021 proposed SEC as a body that may comprise of former judges, academics and other experts and that the membership of SEC could be decided by the CJI in consultation with the union government. The government also pointed out that being a subordinate body, SEC will in no way restrict the collegium’s authority and autonomy in selecting the judges.

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