In a first, the government has started a “detailed scrutiny” of professional track record of advocates and judicial officers recommended by high court collegiums for appointment as judges, a move which may trigger a fresh round of confrontation between the executive and the judiciary.
According to a Ministry of Law and Justice document, “now the process of detailed scrutiny of proposals received for appointment of judges from high courts has been initiated. In the case of advocates, their reported judgements (in cases they represented), and in case of judicial officers their case disposal time and number of adjournments are being evaluated by an in-house team having legal background.”
The document — a monthly report of achievements for the month of July — was sent to the Cabinet Secretariat by the Department of Justice in August. A committee of judges evaluates the best few judgements of judicial officers (judges of the subordinate courts), who are part of a larger pool which the high court collegium may consider for recommendation for elevation to the HC bench.
The judicial officers are evaluated on various attributes and are given numerical grading.
Advocates who are part of the pool give a list of the reported judgements of cases which they have argued in the high court.
As per procedure, once the three-member HC collegium recommends a name to the Supreme Court collegium, it sends the performance record of the candidate. The recommendation is initially sent to the law ministry, which attaches an IB report about the candidate’s overall record and forwards it to the SC collegium for a final call.
Now, the law ministry has started scrutinising the reported judgements of advocates and case disposal time and number of adjournments granted by judicial officers.
“The government should also assess judicial capability of the candidate. It will help understand an advocate’s field of specialisation as also verify whether he or she was a lead advocate or a junior advocate in the cases mentioned.
“Since the SC collegium will decide on whom to recommend to the HC bench, the government is not entering the domain of the judiciary by scrutinising the professional track record of the candidates,” explained a senior government functionary, who did not wish to be identified.
Citing the case of former Calcutta High Court judge C S Karnan, the government had in July once again asked the Supreme Court collegium to review the process of appointment of judges, according to the senior government functionary.
The Secretary (Justice) in the law ministry has written to the Supreme Court Registrar General pointing to the July 5 judgement of the apex court in which two judges had called for the need to revisit the process of selection and appointment of judges.
Judicial appointments as of now are being carried out based on the old memorandum of procedure (MoP).
After a bench headed by then Chief Justice J S Khehar, ruled in December, 2015 in favour of a fresh MoP -— a document which guides appointments and elevation of Supreme Court and high court judges, a new draft was sent to the collegium by the law ministry.
After several rounds of talks, the collegium had once again sent back the draft to the law ministry reiterating its objections on various clauses. One of the clauses rejected by the collegium is on national security on which the government wanted a right to reject recommendation for appointment as a judge.
The judiciary had also objected to a clause that calls for setting up of a secretariat for vetting and clearing names for judges before the collegium takes them up.
Parliament had passed the National Judicial Appointments Commission Act (NJAC). But the law, which sought to scrap the two-decade old collegium system was struck down by the apex court in October, 2015. In a separate order in December, 2015, the bench asked the government to come up with a fresh MoP in consultation with the CJI.