New Delhi: Over the past few months, the tussle between the judiciary and the government over the appointment of judges has intensified. In a letter to Chief Justice of India D.Y. Chandrachud on 6 January, Union Law minister Kiren Rijiju suggested that government nominees be involved in the decision-making process for shortlisting judges for the Supreme Court and the high courts.
Rijiju suggested inclusion of a government representative in the “search-cum-evaluation committee” that will provide inputs on “suitable candidates” to the appointment panel or the Collegium. The letter said that the suggestion was being made since the finalisation of the Memorandum of Procedure (MoP) regarding the appointment of judges is still “pending”.
In an earlier letter, in August 2021, Rijiju had asked the Supreme Court to fine-tune and supplement the existing MoP to formalise the appointment of ad-hoc judges.
But what is the Memorandum of Procedure? How was it framed and why did it need a relook? Is the MoP finalised or is it still pending consideration? ThePrint explains.
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What is the MoP?
The MoP is the list of rules and procedures for the appointment of judges to the Supreme Court and the high courts. It is a document framed by the government and the judiciary together.
The procedure was evolved through three Supreme Court judgments that are popularly known as the three judges cases. These are: SP Gupta v Union of India (1981), Supreme Court Advocates-on-Record Association v Union of India (1993), and In re Special Reference No. 1 of 1998. After these judgments, the Union government framed an MoP on 30 June 1999, for the appointment of judges and chief justices of the high courts and the Supreme Court.
The current MoP, uploaded on the Department of Justice website, gives out the detailed procedure for the appointment of Supreme Court and high court judges. For instance, it says that all appointments of judges to the Supreme Court must be recommended by the Collegium, composed of the Chief Justice of India and the four senior-most judges of the Supreme Court. It also says that in doing so, the CJI would take into consideration the views of the senior-most Supreme Court judge who comes from the same high court as the recommended person. This recommendation is then sent to the central government. The law minister will forward it to the prime minister, who is to advise the President on the appointment.
Need for relook
The process for a relook at the MoP began after a five-judge bench of the Supreme Court struck down the National Judicial Appointments Commission (NJAC), with a 4:1 majority in October 2015. The NJAC was introduced to do away with the Collegium system, and instead put together a six-member committee for appointing judges to the Supreme Court and the high courts. Apart from the CJI and two senior-most judges of the Supreme Court, this committee was also to have government representatives — the law minister and two independent members.
While striking down the NJAC, the court had acknowledged that the MoP needs “fine-tuning”. It had continued hearing the case even after the judgment was passed, “for steps to be taken in the future to streamline the process and procedure of appointment of judges, to make it more responsive to the needs of the people, to make it more transparent and in tune with societal needs, and more particularly, to avoid a fifth judges case!”
In December 2015, it had said that the government may finalise the existing MoP “by supplementing it in consultation with the Chief Justice of India”. It had asserted that the CJI would take a decision on this revised MoP, based on the unanimous view of the Collegium comprising the CJI and the four senior-most judges of the Supreme Court after him.
A new opportunity
According to a December 2022 apex court order, the government sent a revised MoP to the then CJI on 22 March 2016. The Supreme Court Collegium then sent the revised draft of the MoP on 25 May 2016 and 1 July 2016. The order further says that the Collegium’s final view was expressed in the MoP that was received by the government on 13 March 2017. According to reports, this final view rejected every contentious clause sought to be inserted in the new MoP, including a clause that the government should have the power to reject any name for appointment as a judge of the high court for reasons of “national security”.
However, in a status report submitted to the Supreme Court on 7 December last year, the central government highlighted a need to make “improvements” in the MoP. This was after it referred to observations made by a seven-judge bench of the Supreme Court in a July 2017 judgment, laying down the reasons for convicting then Calcutta High Court judge Justice C.S. Karnan for contempt of court.
In a separate but concurring opinion in this 2017 judgment, Justice Chelameswar — writing for himself and Justice Ranjan Gogoi — had said that the case highlighted “the need to revisit the process of selection and appointment of judges to the constitutional courts”. He wrote that there was a “failure to make an assessment of the personality of the contemnor (Karnan) at the time of recommending his name for elevation”. The judges asserted that the appropriate mechanism suitable for assessing the personality of a candidate being considered for appointment to a constitutional court should be decided after a debate by all stakeholders — the bar, the bench, the state and the civil society.
The December 2022 status report said that “the government was of the view that a new opportunity has been created in view of the judgment dated 04.07.2017”, passed in the Justice Karnan case.
Pending issue or final?
While the central government’s official stand is that the finalisation of the MoP is still pending, the Supreme Court has made it clear that the current MoP is final.
A report presented by the Department-related Parliamentary standing committee on personnel, public grievances, and law and justice to Parliament in December last year had also commented on the issue. It said that the committee is “surprised to note that the Supreme Court and the government have failed to reach a consensus on revision of the MoP for appointment of judges to the constitutional courts, though the same is under consideration of both for about seven years now”.
Rijiju’s latest letter also says that the finalisation of the MoP for appointment of judges is still “pending”.
However, during a hearing on 8 December last year, the Supreme Court told the central government that the collegium system is the “law of the land” which should be “followed to the T”. It had also made it clear that “the MoP is final”.
“This does not mean that if the government suggests some changes or improvements in the MoP, that cannot be looked into but till that happens, the MoP as existing would apply,” it added. The discussion came up during the hearing of a contempt petition against the central government for breaching the timelines for judicial appointments.
(Edited by Smriti Sinha)
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