The Supreme Court collegium has finalised the Memorandum of Procedure (MoP) for appointment of judges in the higher judiciary resolving a year-long impasse with the executive by agreeing to include the contentious clause of national security in selection of judges.
Sources said the collegium, comprising five seniormost judges of the apex court, had met recently and agreed to the national security clause which the Centre had insisted as one of the necessary criteria for appointment of judges to the higher judiciary.
The collegium consisting of Chief Justice J S Khehar and four seniormost judges — Justices Dipak Misra, J Chelameswar, Ranjan Gogoi and M B Lokur — has agreed with the Centre on the national security clause provided the specific reasons for use of the clause are well documented or recorded.
The national security clause, which gave veto power to the government to reject a name recommended by the collegium, and the issue of setting up of secretariats in the apex court and all the high courts, were among the two key clauses in the MoP on which the Centre and the judiciary had differences for more than a year.
The sources said that after deliberations, the collegium has also agreed on setting up secretariats in the apex court and the high courts to collate data about judges and assist in the selection procedure for their appointment to the higher judiciary.
In October 2015, a Constitution bench headed by Justice J S Khehar had struck down the NJAC Act passed by Parliament and had directed the Centre to frame a new MoP in consultation with the chief justice of India.
After holding the Constitution (Ninety-ninth Amendment) Act, 2014 and the NJAC Act, 2014, as unconstitutional and void, the apex court in its separate order had decided to consider the incorporation of additional appropriate measures, if any, for an improved working of the collegium system.
Striking a dissent note, Justice J Chelameswar who was part of the five-judge Constitution bench which heard the NJAC case, had said that the collegium system for the appointment of judges is “opaque” and needs “transparency”.
He had said that “primacy of the judiciary” in the appointment of judges is a basic feature of the Constitution and “is empirically flawed.”
Last month, Chief Justice J S Khehar had indicated that the Supreme court may come out with the MoP for the appointment of judges for the higher judiciary by the end of the month.
“We will finalise the MoP may be within this month,” he had said while dismissing a plea seeking transparency in the appointment of judges for higher courts.