When it finalised the draft of the new Memorandum of Procedure (MoP), the document that guides appointments to higher judiciary, the Supreme Court collegium — headed by (then) Chief Justice of India JS Khehar — had decided that no lawyer below the age of 45 years and above the age of 55 years should be considered for appointment as Judge of a high court.Apart from then CJI Khehar, other members of the collegium who decided this included current CJI Dipak Misra and Justices Jasti Chelameswar, Ranjan Gogoi and Madan Lokur. All, except Justice Khehar, who is now retired, are members of the larger SC collegium now.However, even as the new MoP is yet to be notified — it is pending with the government since March — the collegium has shown that it isn’t too keen to stick to its own resolution.Minutes of meeting of the three-member Supreme Court collegium show that the CJI-led panel is not immune to violating the age limit.Take for example the December 4 decision of the collegium while clearing names for Calcutta HC.The High Court collegium had recommended names of six advocates, including Sabyasachi Chaudhury and Sakya Sen, who weren’t 45 at the time their names were recommended.However, the SC collegium has recommended Sen’s name for elevation to the bench in “relaxation of the age criterion”. As for Chaudhary, he completed 45 years of age during the intervening period when his name was recommended by the HC collegium and cleared by the SC collegium.But, Madras HC lawyer AV Radhakrishnan, whose name had been recommended by the HC collegium, wasn’t so fortunate. “… He is more than 57 years of age. Even on the date of recommendation of the High Court Collegium he had crossed the maximum age limit of 55 years prescribed for Advocates recommended for elevation to the High Court Bench. Having regard to above, he is not found suitable for elevation to the High Court Bench,” the SC collegium decided on the same day when it ignored the age criteria in two other cases.Incidentally, it was on the Centre’s insistence that the SC collegium first agreed to include the age clause in the MoP. The Justice Ministry is of the view that such a cause will ensure uniformity and transparency in the appointment process and also rule out the possibility of members of the collegium adopting different yardsticks while recommending names.But it isn’t the age criterion that the SC collegium has refused to stick to while making appointments.It cleared the name of another lawyer of Calcutta HC – Ravi Krishan Kapur – who had failed to submit the undertaking from his lawyer-father as is mandated under existing rules. In doing so, the SC collegium also ignored the objection raised by the Union Ministry of Law and Justice on this subject, saying the undertaking was based on “mere administrative instructions and is not a mandatory requirement”.In yet another departure from rules, the SC collegium decided to clear a candidate – advocate Arindam Mukherjee – even though he had not submitted adequate number of reported/unreported judgments.”In our view, number of reported/unreported judgments is just one of the factors and not the only factor to determine suitability of a recommendee for purpose of elevation,” the collegium noted.
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