SC returns government Memorandum of Procedure for selection of high court judges

NEW DELHI: The Supreme Court has turned down a new Memorandum of Procedure (MoP) — a guideline for selection of high court judges — and returned it to the government, two months after the Centre prepared it.

Certain clauses introduced by the government in its draft MoP do not seem to have cut ice with the Supreme Court collegium. The collegium headed by Chief Justice of India Tirath Singh Thakur said certain clauses needed rectification.

According to government sources, the collegium underlined ‘undesirability’ of certain clauses which were ‘not in harmony’ with the tenets of independent functioning of judiciary. The MoP was received today by the law ministry.

A senior government official, requesting anonymity, said that the draft MoP would have to be modified to introduce transparency in the appointment of judges to superior judiciary. “It is felt that the current draft could not achieve the core purpose of instilling transparency in the selection process of judges”, the official said.

He added that the government would closely examine the matter and “iron out the differences”. For the MoP to be implemented, both government and judiciary have to “agree” on the final draft. After a stand-off between the Modi government and Supreme Court over the constitution of National Judicial Appointments Commission (NJAC), a Constitution bench of the Supreme Court had struck down NJAC last October.

The government had contended that the current system of selection of judges — collegium system — was opaque and that transparency in selection process was imperative. Setting aside NJAC, a legislation to replace the collegium system — the bench headed by Justice Jagdish Khehar had asked the government to prepare a revised MoP in consultation with the Chief Justice of India.

Preparing the draft MoP, the government had decided to keep appointment of top judges out of purview of the Right to Information Act. Incidentally, the government had constantly contended before the Supreme Court that the collegium system was opaque, also asserting that any appointment should be open to scrutiny under the RTI Act. However, the government had later took the stand that transparency could be achieved “even without” RTI.