- Today, on December 16, 2015, Supreme Court passed an order directing government of India to prepare a Memorandum of Procedure dealing with appointment of judges in higher judiciary.
- The SC has shown trust in Parliament leaving the task of improving current procedure of collegium system.
- Relevant paragraphs of the SC order.
- Current CJI has declined appointing next batches of judges in higher judiciary with the current system of collegium system.
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 13 OF 2015
Supreme Court Advocates-on-Record Association and Another ….Petitioners
Union of India …Respondent
- It is important to note that the compilation of the written suggestions placed before us was in the nature of a summary prepared out of approximately 11,500 pages of views expressed. We had a very challenging responsibility to embark upon and reflect, and thereafter, to sieve such of the suggestions as were likely to improve the “collegium system”. Only then would we be in a position to sponsor their introduction into the Memorandum of Procedure for the appointment of Judges of the higher judiciary.
- Even though the task seemed to be daunting, we felt obliged to take up the responsibility, as it was after all, for an improvement of the judicial system and such an opportunity must not be lost. It was at this stage of our reflection, that the learned Attorney General made an impassioned submission, not in any obstructive manner, but as a matter of faithful assistance, suggesting that we should desist from pursuing the contemplated course of action. In this behalf it was pointed out, that the formulation of the Memorandum of Procedure was an administrative responsibility which fell in the executive domain. It was submitted that this Court neither had the expertise nor the wherewithal for proposing amendments in the existing Memorandum of Procedure (drawn on 30th June, 1999 by the Government of India), for improving the collegium system. The learned Attorney General in his submission candidly invited our attention to the following observations recorded in paragraph 478 of the Second Judges case1:
“478. ….(13) On initiation of the proposal by the Chief Justice of India or the Chief Justice of the High Court, as the case may be, copies thereof should be sent simultaneously to all the other constitutional functionaries involved. Within the period of six weeks from receipt of the same, the other functionaries must convey their opinion to the Chief Justice of India. In case any such functionary disagrees, it should convey its disagreement within that period to the others. The others, if they change their earlier opinion, must, within a further period of six weeks, so convey it to the Chief Justice of India. The Chief Justice of India would then form his final opinion and convey it to the President within four weeks, for final action to be taken. It is appropriate that a memorandum of procedure be issued by the Government of India to this effect, after consulting the Chief Justice of India, and with the modifications, if any, suggested by the Chief Justice of India to effectuate the purpose. ….”
It was submitted that even the nine-Judge Bench had left the task of drawing up the Memorandum of Procedure to the Government of India.
- During the course of hearing, we were also informed by the learned Attorney General, that the Memorandum of Procedure and introducing amendments therein, had always been prepared by the Government of India in consultation with the President of India and the Chief Justice of India. This practice, we were informed, had been consistently adopted, in consonance with 2 Special Reference No. 1 of 1998, (1998) 7 SCC 739 the directions contained in paragraph 478 of the Second Judges case. In order to allay any fear that may be entertained by any of the stakeholders, it was submitted that the same procedure would be adopted now, if the task was entrusted to the executive. We are in complete agreement with the suggestion of the learned Attorney General.
- In view of the above, the Government of India may finalize the existing Memorandum of Procedure by supplementing it in consultation with the Chief Justice of India. The Chief Justice of India will take a decision based on the unanimous view of the collegium comprising the four seniormost puisne Judges of the Supreme Court. They shall take the following factors into consideration:
The Memorandum of Procedure may indicate the eligibility criteria, such as the minimum age, for the guidance of the collegium (both at the level of the High Court and the Supreme Court) for appointment of Judges, after inviting and taking into consideration the views of the State Government and the Government of India (as the case may be) from time to time.
Transparency in the appointment process
The eligibility criteria and the procedure as detailed in the Memorandum of Procedure for the appointment of Judges ought to be made available on the website of the Court concerned and on the website of the Department of Justice of the Government of India. The Memorandum of Procedure may provide for an appropriate procedure for minuting the discussions including recording the dissenting opinion of the Judges in the collegium while making provision for the confidentiality of the minutes consistent with the requirement of transparency in the system of appointment of Judges.
In the interest of better management of the system of appointment of Judges, the Memorandum of Procedure may provide for the establishment of a Secretariat for each High Court and the Supreme Court and prescribe its functions, duties and responsibilities.
The Memorandum of Procedure may provide for an appropriate mechanism and procedure for dealing with complaints against anyone who is being considered for appointment as a Judge.
The Memorandum of Procedure may provide for any other matter considered appropriate for ensuring transparency and accountability including interaction with the recommendee(s) by the collegium of the Supreme Court, without sacrificing the confidentiality of the appointment process.
- It is made clear that the guidelines mentioned above are only broad suggestions for consideration and supplementing the Memorandum of Procedure for the faithful implementation of the principles laid down in the Second Judges case and the Third Judges case.
- In view of the above, all matters having been collectively heard, are disposed of.
(Jagdish Singh Khehar)
(Madan B. Lokur)
(Adarsh Kumar Goel)
New Delhi, December 16, 2015