Centre can now reject judges for Supreme Court, high courts on grounds of 'national security'

Centre has the power to reject a candidate on grounds of national security and will be setting up of secretariats in the apex court and each HC to screen judge aspirants.

Putting to end a 17-month standoff with the Centre, the Supreme Court collegium which is now headed by Chief Justice J S Khehar on Monday said it had cleared the memorandum of procedure (MoP) for appointment of judges to the apex court and various High Courts.

The significance of this move is that the collegium has dropped its objection to prime bone of contention- Centre getting power to reject a candidate on grounds of national security and also setting up of secretariats in the apex court and each HC to screen judge aspirants. Khehar's predecessor T S Thakur, who headed the previous collegium was adamant that he will not clear the MoP with these provisions.

It had resulted in matters being in limbo since August last year and stalemate over appointment of nearly five apex court judges and 500 HC judges. "The MoP has been cleared. Now the filling up of vacancy in the High Courts can be sped up. There is also a need to increase the post of judges in the High Courts. But the priority will be to fill the existing vacancies," CJI Khehar said while disposing off PILs which sought speedy filling of judicial vacancies.


Finalisation of the MoP, which will be sent to the Centre for approval and adoption this week, raises hopes of speedy filling up of vacancies in HCs, which are operating at below 60 per cent of their sanctioned strength. The SC collegium also comprising SC's four senior most judges apart from the CJI agreed that a name of a candidate for judgeship can be rejected by the government on grounds of national security if specific reason is put in writing.

Government had in August last year inserted a clause in the MoP that provides primacy to the Centre in rejecting any recommendation of the collegium without ascribing reasons, on the grounds of 'national security'. The collegium recommendation can be rejected by the government if it feels the appointment is not in the overall interest of the country.

The MoP further provides that once the Centre has rejected a recommendation it will not be bound to reconsider it even after reiteration of the collegium.

This is contrary to current practice where government is bound to accept a recommendation by the collegium. Setting stage for the stiff judiciary vs government confrontation, the bench led by Justice Khehar had in October 2015 struck down a new law brought in by the Modi government - National Judicial Appointments Commission which had given it a major role, including veto powers, in matters relating to appointment and transfer of apex court and high court judges and asked the Centre to prepare fresh memorandum of procedure in consultation with the CJI.

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