Law Minister?s suggestion to CJI on MOP

Law Minister’s suggestion to CJI on MOP

News: Union Minister for Law and Justice Kiren Rijiju has written to the Chief Justice of India (CJI) “suggesting” that a nominee of the government should be included in the collegium that makes recommendations for the appointment of judges. The letter offered the suggestion since the Memorandum of Procedure (MoP) is “pending finalisation”.

What is MOP?
• The MoP is the official playbook agreed upon by the government and the judiciary on the appointment of judges. It is a crucial document that governs the collegium system of appointing judges. 
• Since the collegium system evolved through a series of Supreme Court 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 Supreme Court 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.

Why is Law Minister’s suggestion a problematic proposal?
• The proposed inclusion of a government nominee in a new “search and evaluation committee” which will shortlist names and make recommendations to the High Court or Supreme Court Collegium, seeks to change the present system in which names are vetted by the Collegium, which comprises senior judges. 
• The government is trying, through the new Committee, to turn the clock back and re-insert itself into a process over which judicial primacy was formalised in 1993 with the Second Judges Case, and reiterated in 2015 with the Supreme Court striking down the constitutional amendment to bring in the National Judicial Appointments Commission. 
• The proposal will be destructive of the principle of separation of powers on which the Constitution is premised and which forms part of the basic features of the Constitution.
• Earlier, Vice President Jagdeep Dhankar had targeted the court by painting its decision on the NJAC as violative of “parliamentary sovereignty” and questioning the “basic structure” doctrine. These interventions have sharpened apprehensions that the government is trying to use its popular mandate to subdue non-elected institutions, especially the judiciary which is the centrepiece of an intricate system of checks and balances. 
• Any move that results in weakening the independence of the judiciary, or one that rearranges the separation of powers in a way that gives the executive the right of way, therefore, is rife with unhappy consequences in a constitutional democracy. 

What are the limitations with Collegium system?
• As the judiciary appoints its own, it needs to cast its net wider, and make the criteria and process of decision-making more open and inclusive. 
• There is opacity in the working of the Collegium, and a glaring lack of diversity on the bench. 
• The representation of Dalits and women, for instance, needs to go beyond tokenism.

Way Forward
• The Collegium black box needs to open itself to ensure accountability and transparency in a manner that doesn’t undermine its institutional processes.  However, it must be allowed to do it without an overweening executive breathing down its neck. 
• Additionally, we can allow for expression of interest and self-nomination which can overcome the present shortcoming of the system of appointment of judges. This will ensure diversity of class, caste, creed, sexual orientation, leading to an understanding of the plurality and diversity that we need to see on the bench. 

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