CJI Khehar seeks rapid appointment of judges as faceoff ends
21 March 2017
Putting to end a 17-month standoff with the Centre, the Supreme Court collegium, which is now headed by Chief Justice J S Khehar on Monday said it had cleared the memorandum of procedure (MoP) for appointment of judges to the apex court and high courts.
The significance of this move is that the collegium has dropped its objection to prime bone of contention – the Centre getting power to reject a candidate on grounds of national security and also to set up of secretariats in the apex court and each HC to screen judge aspirants. Khehar's predecessor Tirthankar Singh Thakur, who headed the previous collegiums, was adamant that he will not clear the MoP with these provisions.
It had resulted in matters being in limbo since August last year and stalemate over appointment of nearly five apex court judges and 500 HC judges.
"The MoP has been cleared. Now the filling up of vacancy in the high courts can be sped up. There is also a need to increase the post of judges in the high courts. But the priority will be to fill the existing vacancies," CJI Khehar said while disposing of Public Interest Litigations which sought speedy filling of judicial vacancies.
The Supreme Court has been dealing with petitions filed by Lt Col Anil Kabotra and advocate Ashwini Upadhyay for almost a year and the proceedings, previously before a bench headed by then CJI T S Thakur. The Centre repeatedly returned scores of names recommended by the collegium headed by Justice Thakur.
But after Justice Khehar took over as CJI, things settled down and the MoP got finalised. "The MoP is clear. Appointment of judges has to be undertaken on war footing. The high courts are operating with almost half the sanctioned strength of judges. At our level we are doing our best," said the bench of Justices Khehar, D Y Chandrachud and Sanjay Kishan Kaul.
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 per cent of their sanctioned strength. The SC collegium also comprising SC's four seniormost judges apart from the CJI agreed that a name of a candidate for judgeship can be rejected by the government on grounds of national security if specific reason is put in writing.
The government had in August last year inserted a clause in the MoP that provides primacy to the Centre in rejecting any recommendation of the collegium without ascribing reasons, on the grounds of national security. The collegium recommendation can be rejected by the government if it feels the appointment is not in the overall interest of the country.
The MoP further provides that once the Centre has rejected a recommendation it will not be bound to reconsider it even after reiteration of the collegium.
This is contrary to current practice where government is bound to accept a recommendation by the collegium.
Setting the stage for the stiff judiciary versus government confrontation, the bench led by Justice Khehar had in October 2015 struck down a new law brought in by the Modi government - National Judicial Appointments Commission which had given it a major role, including veto powers, in matters relating to appointment and transfer of apex court and high court judges and asked the Centre to prepare fresh memorandum of procedure in consultation with the CJI.