The Telegraph
Friday , February 17 , 2017

Hint of judicial truce

New Delhi, Feb. 16: The Supreme Court collegium headed by Chief Justice J.S. Khehar and the NDA government has reportedly agreed to bury their differences over appointment of judges to the top court and high courts to end a deadlock that has persisted for long.

They have also reportedly decided not to prolong their confrontation over the memorandum of procedure (MoP), the manual that guides the appointment process.

As part of the "give and take", the government has cleared at one go the elevation of five judges to the Supreme Court who are to be sworn in tomorrow, sources said.

The collegium, on its part, resolved to put on hold the transfer of two high court judges and the elevation of Uttarakhand Chief Justice K.M. Joseph to the top court.

The sources said the "quid pro quo" was aimed at ending the stalemate over appointments to the higher judiciary that had persisted since May last year.

The Centre was reportedly opposed to the transfer of Justice Valmiki Mehta of Delhi High Court to Gujarat and Justice M.R. Shah of Gujarat High Court to Rajasthan and also the elevation of Justice Joseph, who had quashed President's rule in Uttarakhand.

Earlier, in April last year, the collegium had transferred Justice Joseph to Andhra Pradesh High Court on medical grounds. But the Centre refused to clear the transfer.

Around October last year, Justice Joseph's name was shortlisted for elevation to the Supreme Court by the previous collegium headed by the then Chief Justice of India (CJI), T.S. Thakur.

The Narendra Modi government has also been insisting that it should have the power to veto the name of a judge recommended for a high court or the Supreme Court on the ground of "national security".

The government also wanted a separate Supreme Court secretariat to be set up to handle the appointment process.

But the Justice Thakur-headed collegium - a panel of the top five Supreme Court judges - rejected both these clauses, leading to the stalemate.

Another fallout of the stalemate was the number of Supreme Court judges went down to 24, against a sanctioned 31.

But the decks have now been cleared by the NDA government for the elevation of the five judges - Rajasthan Chief Justice Naveen Sinha, Madras Chief Justice Sanjay Kishan Kaul, Chhattisgarh Chief Justice Dipak Gupta, Kerala Chief Justice Mohan M. Shantanagouder and Karnataka High Court judge Justice S. Abdul Nazeer.

"We can't hold up the entire process. There has to be some understanding for smooth functioning," a top judicial officer told The Telegraph.

Sources said the collegium headed by Justice Khehar, who took charge as CJI in January, was of the view that there was no need to continue the confrontation with the Centre over the MoP as the differences over the contentious clauses - "national security" and a "separate secretariat" - could be mutually sorted out.

This is in contrast to what was witnessed earlier when the collegium was headed by Justice Thakur. The former CJI had even threatened to pass a judicial order if the appointment process was stalled by the government.

The MoP, a written manual that evolved in 1998, laid down certain mutually acceptable norms that the judges-only collegium and the government had to follow.

But in October 2015, a five-judge constitution bench - which struck down the NJAC Act that had sought a say for the government in the appointment process - directed the government to redraft the MoP for greater transparency in appointments and transfers.

Sources said the government had in August sent back to the collegium the file related to the MoP for reconsidering the two contentious clauses, but Justice Thakur did not bring it for discussion before the panel till November 15.

Thereafter, Justice Thakur and Justice A.R. Dave, who has also retired, raised some objections over the two clauses.

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