NEW DELHI: Overcoming serious differences within itself, as well as with the Centre, the Supreme Court collegium has finalised the memorandum of procedure (MoP) for appointment of judges to constitutional courts.
The issue had been a bone of contention between the executive and the judiciary for more than a year.
The collegium, headed by Chief Justice J S Khehar and comprising Justices Dipak Misra, J Chelameswar, Ranjan Gogoi and Madan B Lokur agreed to the contentious national security clause that the Centre had insisted upon as one of the grounds for determining the eligibility of judges for appointment to the apex court and high courts.
TOI had reported in its edition on February 27 about the possibility of an understanding on the Centre’s stance that “national security” ought to be part of the criteria to determine eligibility for appointment as judges.
In another breakthrough, the apex court collegium dropped its reservation about setting up secretariats in the SC and each high court to maintain databases on judges and assist the collegiums in the SC and the high courts in selection of judges.
Sources said it was unanimously decided to set up secretariats in the apex court and each high court.
Vacancies in HCs to be filled soon
The dispute between the collegium and the government had held up appointments to higher judiciary despite rising vacancies.
Finalisation of the MoP, which will be sent to the Centre for approval and adoption this week, raises hopes of speedy filling up of vacancies in HCs, which are operating at below 60% of their sanctioned strength.
In many HCs, court rooms have been shut because of lack of adequate number of judges. This is hampering disposal of cases, which adds to the backlog.
“There were no other sore points except the national security clause and secretariat in the MoP that required resolution.
The members of the SC collegium held seven meetings and unanimously finalised the MoP after debating each clause and sentence of the new MoP while keeping in view the provisions of the old MoP and the constitution bench judgment of October 2015,” a source said.
The source said the collegium agreed with the Centre on the national security clause on the condition that specific reasons for application of the clause were recorded. Other sources confirmed that the issue, one of the sticking points, was resolved “in the best possible way”.
A constitution bench headed by Justice Khehar in October 2015 had struck down the NJAC and in December 2015 had directed the Centre to frame a new MoP in consultation with the CJI, who was to act in accordance with the unanimous view of the members of the collegium.
For the last one year, the draft MoP was getting tossed back and forth between the Centre and the collegium with both sides refusing to budge over their stated positions on the national security clause which ostensibly gave veto power to the government to reject a name recommended by the collegium for appointment as judge.
However, things started moving after Justice Khehar took over as CJI and the composition of the collegium changed, allowing it to meet the challenges head on.