SC collegium breaches MoP for HC picks

NEW DELHI: A few names cleared by the Centre for judicial appointments earlier this week indicate the Supreme Court collegium has been inconsistent in observing its own Memorandum of Procedure (MoP) drawn up in March to guide the appointment of judges to the higher judiciary.

The revised MoP had clear criteria, including age bracket, minimum income, and adequate number of reported judgments, to assess the suitability of a lawyer for elevation as judge. But barely a month after approving the MoP and sending it to the government, the collegium, in April, seemed to have disregarded or diluted some clauses in recommending names for appointment to the Andhra Pradesh and Telangana high court.

Interestingly, these parameters were inserted in the MoP due to a rare unanimity between the government and the judiciary in an otherwise bitterly contested document. Even now their is no agreement on the government having the right to reject a recommendation on national security grounds.

While it included the age criterion, the collegium ignored the clause to clear two names that would have otherwise been barred from consideration as they exceeded the upper age limit. Sources say the collegium also ignored that one of the candidates had literally no practice in the HC, much less any reported judgment, as he only practised in a district court.

These and some other points were flagged by the governments of AP and Telangana, TOI has learnt, when they objected to the recommendations first sent by the HC.

The state governments in its opinion also underlined that five of the six advocates recommended were either relatives or juniors of judges or among their close ones. One candidate declared in the resume that he had been the junior of a senior law officer who now happens to be a senior SC judge. The governments further highlighted the inadequate number of reported judgments to question the suitability of some of the nominees. For instance, one of the candidate filed only 91 cases in the past five years.

Last year, the government proposed fixed yardsticks for eligibility, saying it would help make appointments of lawyers as judges more transparent. In March 2017, the collegium agreed, as it included, for the first time, in the MoP a minimum and maximum age criteria for lawyers.

To be eligible, a lawyer should have attained the age of 45 years but shouldn't be above 55 years of age at the time of nomination. The new MoP also stressed that merit and integrity of the candidates would be the "prime criteria" for appointment, while also taking into account other aspects such as considerable practice and minimum income of a lawyer.

Due to the objections raised by Telangana and Andhra Pradesh, the Centre sat on the SC recommendations while it made up its mind. However, as reported by TOI earlier, Justice J Chelameswar took a non-negotiable stand that unless the Centre took a decision on the recommendation for six appointments to the Telangana and AP HC, he will not take part in collegium meetings.