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Appointment of judges to higher courts governed by instrument lacking democratic scrutiny

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A more widespread discussion on the Memorandum of Procedure is necessary because the process of appointment needs an overhaul.

Recently, much of the public attention regarding the judiciary has been occupied by instances of certain judges not being elevated to the Supreme Court or the general vacancy numbers at the high courts. The critical issue of the status of Memorandum of Procedure (MoP), a document on the protocol and procedure for appointments to the high courts and the Supreme Court, has not received the scrutiny it deserves.

To summarise the situation so far: a five-bench historic ruling (with one dissenting opinion) in October 2015 held the National Judicial Appointments Commission (NJAC) Act, which sought to replace the existing collegium system, as unconstitutional. The same bench then sought public inputs on how the MoP being followed can be improved. When the bench showed inclination to amend the MoP based on public comments received, the government counsel pointed out that formulating the MoP was the domain of the executive as laid down by the Second and Third Judges cases. Consequently, the bench included in its further order of December 2015 ‘broad suggestions for consideration and supplementing the MoP for the faithful implementation of the principles laid down in the Second Judges case and the Third Judges case’ and left the task of finalising the MoP to the executive.

A work-in-progress

The new improved version of the MoP has therefore been a work-in-progress for almost two-and-a-half years now. It is no secret that the MoP has travelled back and forth many times between the Chief Justice of India and the union law ministry. Despite this, a consensus eludes. The most recent update to this saga is that the union government communicated in July 2017 certain proposed changes in the MoP to the secretary-general of the Supreme Court. However, it is reported that the Chief Justice of India refused to respond to a letter addressed to the registry. Earlier, correspondence on this issue was addressed directly to the Chief Justice of India.

The legal character of the MoP is curious. In its current form, the MoP is supposed to document an agreement between the judiciary and the executive. There is no provision in the Constitution, which facilitates something of this nature. It is definitely not in the nature of a legal enactment or a judicial pronouncement, which could have a binding force. As it is, the MoP has no determinate legal value. This raises a significant question. How democratic is the MoP? Is it a legitimate product of democratic value or is it merely a contractual arrangement between two centres of power?

Ensure democratic process

India being a constitutional democracy, there are established constitutional and legal methodologies to address issues, especially ones of such immense significance. There could be a constitutional amendment. There could be a law passed by Parliament or an ordinance issued by the executive. There could also be rules framed under any statute. In the least, executive orders could be passed under the sign and seal of appropriate authority. These methodologies are important because they ensure minimum democratic process. They also ensure the scope for sufficient public dialogue in the process of policy formulation.

While there was a public consultation period for the MoP, the same was definitively inadequate for two reasons. First, the public consultation period lasted for less than 10 days, which was grossly unsatisfactory. Second, a more appropriate consultation practice is needed for the authorities concerned to float a draft proposal, which the public may comment on. That would have provided a more effective public scrutiny of the proposals being drawn up by the Supreme Court or the department of justice. In its current form, the public intervention lacks sufficient specifics. If the consultation were invited on a definite draft proposal, that would have ensured a more purposeful public discourse on the issue.

Fix the system

The MoP is essentially an experimental instrument. It is not subject to the traditional democratic scrutiny, which any other policy document otherwise would have been if it were in the nature of a law, rule, or ordinance. It is not discussed in Parliament. As it lacks a legal character, it also cannot be questioned in a court of law at any point in time. Here the concern is not about the current MoP but the very idea of an MoP determining the process of judicial appointments and the manner in which it should be formulated. While many may be fine with the contents of the MoP, which may eventually be formulated without effective structural safeguards, there is no reason why it may not be revised subsequently to something less satisfactory.

A more widespread discussion on the MoP is also necessary because the process of appointment needs an overhaul. Overworked judges and clogged courts leave judicial staff with little time to do justice to a process as critical as appointments. A full-time secretariat is required for this critical function. The secretariat would assist senior judges in: calculating optimal judicial strength required; initiating, well ahead of time, the search process for appropriate judicial candidates; developing norms for appointments; receiving and evaluating applications. Similarly, there is a need for a body that would be responsible for handling complaints against judges in an independent manner. These changes, if implemented through a widely discussed MoP, would enhance institutional capacity of the judiciary in the long term.

It is unfortunate that the procedure of finalising the MoP continues to remain opaque even in a large and vibrant democracy such as ours. That an issue as critical as appointment of judges to the Supreme Court and high courts would be governed by an instrument lacking sufficient democratic legitimacy does not reflect well on our institutional structures.

Rangin Pallav Tripathy is faculty at NLU, Odisha and Visiting Fellow, DAKSH. Surya Prakash B.S. is with DAKSH, Bengaluru, a civil society organisation working on judicial reforms. Views are personal.

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