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In yet another signal to the higher judiciary that it isn’t ready to back down on its assertion for more powers for the executive on the issue of appointments to the high courts and Supreme Court, the Narendra Modi government has asked the Intelligence Bureau (IB) to carry out a “more stringent” background check on all names recommended by the collegium for elevation.
Coming at a time when both the Supreme Court collegium and the Modi government are refusing to yield on many of the contentious issues in the draft Memorandum of Procedure (MoP), which would guide appointments to the higher judiciary, the government’s move could be viewed as strong-arm tactics to get the judiciary to agree to “more transparency” and, possibly, more voice for the government on such appointments.
To begin with, the Intelligence Bureau (IB) has been told to scrutinise each name recommended by the collegium “more carefully” so that nobody of questionable integrity is appointed. As part of this exercise, the recommendations made for elevations to the Allahabad High Court, Delhi High Court, Punjab and Haryana High Court and Chennai High Court, among others, are being “scrutinised more carefully”.
“So far, the IB was simply being asked to carry out cursory background checks, with even the bio-data of lawyers recommended for elevation not always being provided to the agency. This has changed now. We have asked the IB to vet each name more carefully, look into any issue concerning integrity or character so that no undesirable person is appointed. Also, it has been decided to give more weightage to the inputs sent by the IB, which has been told to send more detailed reports, especially in case of names where it raises a red flag. In cases where the IB gives a negative input, we will refer the matter back to collegium for reconsideration,” said a senior government functionary.
The IB has also been asked to take a detailed look at the the “links” of the names recommended with sitting or retired judges.
“In so many cases, lawyers’ names are recommended only because they were earlier working in the chambers of sitting or retired judges of the high court or are related to judges. This used to lead to undeserving persons becoming judges because there wasn’t a more stringent check on the part of the IB. This will change now. Unless somebody deserves to be a judge on merit, he will not become one. We will raise objections if need be,” said a source in the law ministry.
The government has also decided to be “more proactive” while dealing with all recommendations.
According to sources, sometime back, the Centre questioned the continuance of six judges — one has since retired — of Punjab and Haryana High Court in the Rajasthan High Court. It is learnt that the government indicated to the Supreme Court collegium that it was not advisable to have six judges from the same high court in another high court.
“Apart from the Chief Justice, who has now retired, there were five other judges from Punjab and Haryana High Court in the Rajasthan High Court. When the recommendation for making two of these judges — Justices Jaishree Thakur and Anupinder Singh Grewal (both additional judges then) — permanent was sent to us, we pointed out to the collegium that it may not be a good practice to have so many judges from one high court in another high court. As a result, we were assured that something (transfer out of Rajasthan) would be done once they were made permanent,” said a source. The other three judges from Punjab and Haryana High Court are Kanwaljit Singh Ahluwalia, Sabina and Nirmaljit Kaur.
Sources in the Supreme Court, meanwhile, told The Sunday Express that the collegium headed by Chief Justice of India Tirath Singh Thakur has decided not to accept any of the suggestions made by the Modi government to the draft MoP, including the clause which will allow the government to reject any recommended name on grounds of national security.
Sources said the colllegium met last week after the government’s representatives, including then Law Minister D V Sadananda Gowda, met CJI Thakur to explain the rationale behind the government’s insistence on certain clauses. At the meeting of the collegium, the unanimous view was that the changes to the draft MoP that the government was insisting on was an attempt by the government to control judicial appointments through the back door, with the NJAC Act having failed the Constitutional test.
”The government will be informed about our views. Transparency is welcome but the independence of judiciary is non-negotiable,” said a source.