#DNAExclusive: Citing CS Karnan, govt reopens judges' selection debate

Almost four months after the Supreme Court collegium rejected every contentious clause that the Narendra Modi government wanted to be included in the new Memorandum of Procedure (MoP) for appointments to the higher judiciary, the Centre is making one more attempt to get its way.

Citing a paragraph in the concurring judgment by Justice Jasti Chelameswar and Ranjan Gogoi in the contempt case involving former Calcutta High Court judge CS Karnan, the Centre has written to the Supreme Court asking if, in light of the view of the two senior judges, the collegium wants to revisit its stand on the key clauses of the MoP.

Sources told DNA that in a letter to the Supreme Court Registrar-General last week, the Union government has referred to the relevant part of the concurring judgment to reiterate the need for the collegium to revisit its stand on the various clauses suggested by it.

The Centre's letter also rakes up the issue of the SC collegium refusing to grant the government the power to reject any name for appointment as a judge for reasons of "national security".

In March, in its "final" response to the government, the five-member collegium headed by Chief Justice of India JS Khehar, had unanimously rejected the recommendation of the Modi government that the Executive Branch should have the power to reject any name for appointment as a judge to the high court for reasons of "national security".

The collegium had also turned down the recommendation of the Centre to set up a screening-cum-evaluation committee.

The committee would have to filter candidates eligible for appointment as judges of High Courts and a complaints committee to look into charges against sitting judges.

Drafting of the new MoP began after a five-judge bench of the Supreme Court headed by Justice Khehar, in October 2014, declared as "unconstitutional and void" the National Judicial Appointments Commission (NJAC) Act passed by Parliament. The bench later directed that a new MoP be finalised by the government in consultation with the CJI.

On July 6, in their concurring judgment in the contempt case of Justice Karnan, who sometime back was sentenced to six months in prison for committing contempt of court, Justices Chelameswar and Gogoi, both members of the larger collegium, noted that Justice Karnan's case underlined the need for revisiting the process of selection of judges.

They also noted that the case also proved that there was need for a system to punish errant judges of the superior judiciary where the offence was not so grave so as to merit impeachment.

The collegium, incidentally, had also not agreed to the government's insistence on the judiciary setting up a committee of three judges of the Supreme Court, none of whom is a member of the collegium, to look into complaints against serving high court judges and examine the same for further action.

"This case, in our opinion, has importance extending beyond the immediate problem. This case highlights two things, (1) the need to revisit the process of selection and appointment of judges to the constitutional courts, for that matter any member of the judiciary at all levels; and (2) the need to set up appropriate legal regime to deal with situations where the conduct of a Judge of a constitutional court requires corrective measures - other than impeachment – to be taken," the concurring judgment by Justices Chelameswar and Gogoi reads.

While CJI Khehar had sent the collegium's views to the Centre on March 13, the government has been sitting on the file, refusing to take any final view on it. Sources said the Supreme Court will take a call on the letter next week.