Underlining that the final decision to recommend judges will remain with the Collegium, the government on Thursday told Parliament that the search and selection committee it has suggested to the Chief Justice of India will only act as a “facilitator”.

“Besides a number of other suggestions, the Government also suggested a Screening cum Evaluation Committee at Supreme Court and High Court levels to assist the Collegia of Supreme Court and High Courts, respectively,” the Law and Justice Ministry said in a written reply to Rajya Sabha.

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“The Committees were to go through the material connected with evaluation the suitability of the prospective candidates and would be only a facilitator, as the decision to recommend will still be with the Collegia of the Supreme Court and High Courts,” it stated.

Congress leader Mukul Wasnik had asked (Question Number 119) whether the government had sought a search panel with its nominee to choose judges, and the response of the judiciary.

In another response, to JD(U) leader Ram Nath Thakur (Question Number 117), the Department of Justice stated that this suggestion was also made in 2015 and the Supreme Court “did not agree to set up such Committees.”

On January 6, Union Law Minister Kiren Rijiju had written to CJI D Y Chandrachud, suggesting inclusion of a search and selection committee with representatives of the government in the process of appointment of judges.

In its reply to Question 119, the Justice Department underlined that the MoP (Memorandum of Procedure of appointment of judges) is “pending finalisation” in light of “various judicial pronouncements.” The government cited the unanimous decision of a seven-judge bench of Supreme Court in 2017, holding former Calcutta HC judge, Justice C S Karnan, guilty of contempt of court.

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In its response to Question 117, however, the government stated that the MoP was finalised in 2017.

It said in response to Thakur’s question: “In pursuance of the above orders, the Government of India, after due diligence sent the MoP to Hon’ble Chief Justice of India on 22.3.2016, the response of the Supreme Court Collegium on the revised draft MoP was received on 25.05.2016 and 01.07.2016. The view of the Government in response to the views of the SCC was conveyed to the CJI on 03.08.2016. Subsequently, the then Chief Justice of India, vide letter dated 13.03.2017, sent the MoP.”

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In the Karnan ruling, Justices J Chelameswar and Ranjan Gogoi had observed in separate opinions that the process of appointment of judges needs to be revisited.

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“What appropriate mechanism would be suitable for assessing the personality of the candidate who is being considered for appointment to be a member of a constitutional court is a matter which is to be identified after an appropriate debate by all the concerned — the Bar, the Bench, the State and civil society. But the need appears to be unquestionable,” Justice Chelameswar had said.

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In 2015, when the constitutional amendment setting up the National Judicial Appointments Commission was struck down, the SC had observed that the MoP would be revised in view of “grievances” raised during the hearings. In 2017, then CJI J S Khehar had responded to the government’s suggestions on the MoP. With this, the MoP was considered “finalised” even in judicial pronouncements.

“In this behalf, a final view of the Judiciary was sent after discussion and there is no change in the aforesaid. The MoP has been circulated to the Chief Justices of High Courts,” a three-judge bench headed by then CJI S A Bobde had said in a judgment on April 20, 2021.

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The ruling set timelines for the government in the process of appointment of judges.

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