Sixteen months after a constitution Bench asked the government to frame a Memorandum of Procedure (MoP) for appointment of judges of the higher judiciary in consultation with the Supreme Court collegium, it’s still hanging fire.Law Minister Ravi Shankar Prasad today said, “It’s in the process of being finalised.” He was talking to the media after inaugurating three welfare initiatives of the Department of Justice – “Pro bono legal services”, “Tele-law service” and “Nyaya Mitra”.Prasad’s statement is at variance with that of Chief Justice of India JS Khehar who had on March 20 said the MoP for appointment of judges has finally been cleared and vacancies of judges in high courts would be filled expeditiously.During hearing of PILs on judicial vacancies and pendency, CJI Khehar had said filling of judicial vacancies was being done on a war footing. “Things will come in the open quickly,” he had said.But the Law Minister’s statement is indicative of the fact that the tussle between the NDA government and the top court’s collegium over some tricky issues in the MoP, including rejection of appointments on the ground of national security, is not yet over.The NDA government and the judiciary have been at loggerheads over judicial appointments ever since a Constitution Bench declared the NJAC Act — which gave some say to the Executive in judges’ appointments — unconstitutional in October 2015.The SC revived the collegium system of judicial appointments put in place by a judicial order in 1993 under which top judges of the SC appoint judge to the SC and HCs. However, it admitted that there were lacunae in the collegium system that needed to be rectified.In December 2015, it delivered another verdict that recommended steps to make the collegium system transparent and asked the government to draft MoP in consultation with SC collegium.The government wanted to have “public interest” and “national security” as grounds for rejection of names for judgeship which was not acceptable to the collegium. It’s understood that both sides ceded some ground to the other but there were differences on some issues, including setting up of a secretariat to assist the collegium in selection of judges.
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