Why in News?

• The Union Minister for Law and Justice has written to the CJI suggesting that a nominee of the government should be included in the collegium that makes recommendations for the appointment of judges.

Background: 

• The suggestion to the CJI comes in the backdrop of –

• An ongoing tussle between the government and the judiciary on the issue of the appointment of judges.
• A Memorandum of Procedure (MoP) is pending finalisation.

What is the MOP?

• It is the official playbook agreed upon by the government and the judiciary and governs the collegium system of appointing judges.
• Since the collegium system evolved through a series of SC rulings (First (1981), Second (1993) and Third (1998) Judges Cases), the MoP is the bedrock of the process of appointments.
• The MoP was sought to be re-negotiated after the SC struck down (4:1) 2015 the National Judicial Appointments Commission (NJAC).
• Draft MoPs, which include eligibility criteria, a new secretariat and a mechanism to deal with complaints against proposed candidates, were exchanged during 2015-17.

The bone of contention in the MoP and SC’s take on the appointment process:

• The insertion of a “national security” clause that may prevent an appointment was a major point of contention.
• However, before the document could be finalised, the SC in a 2017 judgement (a suo motu contempt proceeding against Justice C S Karnan, then a judge of the Calcutta HC) highlights,
• The need to revisit the process of selection and appointment of judges to the constitutional courts.
• The necessity to establish an effective legal regime to deal with situations where the conduct of a constitutional court judge necessitates remedial actions (other than impeachment).
• The SC has initiated a contempt case against the government for not adhering to the timelines set out in the MoP and court rulings.

Government’s stand:

• The MoP is under finalisation by the Government in consultation with the SC Collegium.
• The Parliamentary Standing Committee on Law and Justice voiced concern, given that the MoP had been pending for more than seven years.

What does the Law Minister’s suggestion imply?

• Government representatives should be a part of the SC (CJI and four senior-most judges of the apex court) and HC (Chief Justice and two senior-most judges of a particular HC) Collegiums.
• A departure from the NJAC

The opposition to the suggestion:

• This remedy is a poison pill for an independent judiciary.
• A representative of the Government alone attacks not only the independence of the judiciary but also the competitive balance between the ruling party and the opposition.