New Delhi: The government wants to have a say in recommending names of candidates for elevation as judges of the Supreme Court, with the draft Memorandum of Procedure prepared by it favouring a role for the Attorney General at the Centre and Advocates General in states in the exercise.
The MoP is a document which guides the collegium in appointment of judges.
If the Supreme Court accepts the draft, then effectively the government can also suggest candidates as the AG is the top law officer appointed by the government.
In the appointment of judges to the high court, all the high court judges as well as the respective Advocates General of the state will be free to recommend their candidates, the draft says. This would mean, the state governments can also recommend candidates through their Advocates General.
While the draft MoP has been finalised by a group of ministers headed by External Affairs Minister Sushma Swaraj, it is likely to undergo changes before being sent to the Chief Justice of India for approval.
The draft also states that any dissent note to a recommendation of the collegium to appoint or elevate a judge should be mandatorily shared with the Executive.
This point has been incorporated based on the judgment the Supreme Court delivered last year on ways to make the collegium system more transparent.
The draft also says upto three judges in the Supreme Court should be from the Bar.
The government has decided not to bring the collegium appointments under RTI ambit as it apprehends it could lead to a flood of applications from aspirants and "interested parties" seeking file notings and other details.
According to the draft MoP, evaluation of judgments delivered by a high court judge during the last five years and initiatives undertaken for improvement of judicial administration should be the yardstick of merit for promotion as chief justice of a high court. At the same time, it also suggests that seniority should also be kept in mind.
The document stresses on the need for merit as a major yardstick for appointment of judges.
Another suggestion is that a high court should not remain without a chief justice for more than three months.
Some of the issues highlighted by the draft MoP are transparency in the appointment process, eligibility criteria, a permanent secretariat for the collegium and a process to evaluate and deal with complaints against candidates.
The government and the judiciary are learnt to be on the same page on the issue of a permanent secretariat for the collegium.