Centre holds on to its Memorandum of Procedure, AG Mukul Rohatgi directed to create point-by-point rebuttal

Centre holds on to its Memorandum of Procedure, AG Mukul Rohatgi directed to create point-by-point rebuttal

The Centre is reportedly working on a point-by-point rebuttal of the objections put forth by the Supreme Court of India against the Memorandum of Procedure tendered by the State.

The Supreme Court of India had, on May 25, returned the Memorandum of Procedure to the Government, stating that certain clauses needed clarification. Government Sources were quoted as claiming that the collegium had highlighted ‘undesirability’ of certain clauses which were ‘not in harmony’ with the tenets of independent functioning of the judiciary.

Following this, the MoP has now been referred to Attorney General Mukul Rohatgi, demanding that reasons be given for rejection of the collegium’s opinion. A top source was quoted as saying that the response to the collegium may not be sent before July.

It was on December 16, 2015, the Constitution Bench of the Supreme Court had directed the Government to draft a new Memorandum of Procedure [MoP] for appointment of High Court and Supreme Court Judges. The Court had issued following broad guidelines for consideration:

“Eligibility criteria

The Memorandum of Procedure may indicate the eligibility criteria, such as the minimum age, for the guidance of the collegium (both at the level of the High Court and the Supreme Court) for appointment of Judges, after inviting and taking into consideration the views of the State Government and the Government of India (as the case may be) from time to time.

Transparency in the appointment process

The eligibility criteria and the procedure as detailed in the Memorandum of Procedure for the appointment of Judges ought to be made available on the website of the Court concerned and on the website of the Department of Justice of the Government of India. The Memorandum of Procedure may provide for an appropriate procedure for minuting the discussions including recording the dissenting opinion of the Judges in the collegium while making provision for the confidentiality of the minutes consistent with the requirement of transparency in the system of appointment of Judges.

Secretariat

In the interest of better management of the system of appointment of Judges, the Memorandum of Procedure may provide for the establishment of a Secretariat for each High Court and the Supreme Court and prescribe its functions, duties and responsibilities.

Complaints

The Memorandum of Procedure may provide for an appropriate mechanism and procedure for dealing with complaints against anyone who is being considered for appointment as a Judge.

Miscellaneous

The Memorandum of Procedure may provide for any other matter considered appropriate for ensuring transparency and accountability including interaction with the recommendee(s) by the collegium of the Supreme Court, without sacrificing the confidentiality of the appointment process.”

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