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The apex court has asked the Centre to finalise a draft memorandum of procedure for appointing judges in consultation with the Chief Justice of India.
Precisely two months after the controversial judgment scrapped new judges’ appointment rules brought in by the government, the Supreme Court in a surprising decision on Wednesday virtually put the ball back in the government’s court.
The apex court asked the Centre to finalise a draft memorandum of procedure for appointing judges to the Supreme Court and high courts in consultation with the Chief Justice of India.
It was a big U-turn as the justice JS Khehar-led bench, which after holding marathon hearings on improving the collegium system, was widely expected to decide on four crucial aspects which it itself had chosen – how to improve transparency in the judges’ selection process, what changes to be made to the eligibility criteria for persons to be considered for appointment as a judge, on formation of an office of the collegium in the Supreme Court which will be called the secretariat and on how to deal with any complaints against persons in the zone of consideration – provided only broad suggestions to the government to be included in the Memorandum on four points to ensure transparency. In its 16-page order, the Constitution bench said by allowing the government its due share in the process of selection of judges, it was “allaying the fear that may be entertained by any of the stakeholders”.
“During the course of hearing, we were informed by the Attorney General, that the Memorandum of Procedure had always been prepared by the Government of India in consultation with the President of India and the Chief Justice of India. In order to allay any fear that may be entertained by any of the stakeholders, the same procedure would be adopted now.
We are in complete agreement with the suggestion of the learned Attorney General”, the bench noted. It is to be noted that the apex court verdict on October 16 had evoked sharp reactions from government with Attorney General Mukul Rohatgi and Finance Minister Arun Jaitley slamming it. While Rohatgi termed it a flawed judgment which ignored the will of the people”, Jaitley kicked off a controversy saying, “Indian democracy cannot be a tyranny of the unelected”.
Jaitley had said while the judgment upheld the primacy of one basic structure – independence of judiciary – it diminished five other basic structures of the Constitution, namely, Parliamentary democracy, an elected government, the Council of Ministers, an elected prime minister and the elected leader of the Opposition.