The once fiercely burning embers of the judiciary-executive tussle seem to be glowing, still. The Supreme Court collegium has handed over the finalised Memorandum of Procedure (MoP) for appointment of judges to the government. But there it has inserted a critical clause that might again give rise to tension.

While agreeing to the government’s proposal for a national security clause in the MoP, the collegium has not given up its right to insist on a name that may have been rejected by the government.

This was one way for the collegium to reiterate its independence. It has conceded ground on the issue of security—the government had included a controversial clause that would allow it to reject a candidate recommended by the collegium if he or she is perceived to be a security threat. The issue created a huge logjam for over a year, which seemed to have been cleared with the judiciary agreeing to the national security issue.

However, with this new clause, with a somewhat ambiguous scope, any government refusal may result in a potential disagreement with the judiciary. That might bring the issue back to square one.

It has been clearly stated to the government by five senior-most judges of the apex court, headed by Chief Justice of India JS Khehar that government objections vis-a-vis national security and public interest will be relayed to the collegium. However, the final call on this will rest with the collegium, according to media reports.

Things were easing out after the judiciary rejected the National Judicial Appointments Commission Act, when the Supreme Court agreed to review the MoP. This new clause has virtually put a spanner in the works.

—By India Legal Bureau