Disagreements stall rules on appointment of judges
A new Memorandum of Procedure (MoP) for the appointment of judges to the higher judiciary is yet to be finalised because of continued disagreements over the issue more than four years after the Supreme Court asked the Centre to draft the document, according to officials aware of the developments.
In December 2015, the Supreme Court ordered the government to revamp the 1999 MoP and finalise a new one after consultations with the Chief Justice of India (CJI). The order came after the Centre, through its then-Attorney General Mukul Rohatgi, sought to draft the MoP stating that it was an administrative responsibility, which fell within the executive domain.
In its order, the court noted that Rohatgi submitted the Supreme Court neither had the expertise nor the wherewithal for proposing amendments to the existing MoP.
Over the four years since then, the government and the CJI have held discussions and differed over the issue. As per the response received in August last year to a query under the Right to Information Act, the government sent a draft of the new MoP in March 2016 to the CJI, who responded to it a few months later. The government again in August 2016 conveyed its views about the CJI’s response. The CJI got back to the government in March 2017.
Subsequently, the Centre conveyed the need for making improvements to the draft MoP to the Supreme Court on July 11, 2017.
A law ministry official said that the ball is now in the CJI’s court. CJI Sharad Arvind Bobde’s office could not be reached for comment while Attorney General KK Venugopal declined to speak on the subject.
In February 2018, HT reported that the law ministry wrote a letter to the Supreme Court in July 2017 acknowledging the differences. It said that the government wanted to keep the reasons for rejecting a candidate’s selection on the grounds of “national security and overriding public interest” confidential and share it only with the CJI. The letter mentioned the two other issues of difference between the government and the Supreme Court. The Supreme Court was against creating a secretariat for vetting and clearing names of judges and forming a committee of judges, who were not part of the collegium to screen complaints against sitting judges. It was also not in favour of having search and evaluation committees for selecting candidates.
The MoP was first drafted in June 1999 and laid down the procedure to be followed under the collegium system for appointing judges to the higher judiciary. The Centre has minimal say in such appointments.
In 2015, Parliament enacted the National Judicial Appointments Commission (NJAC) Act to mark a significant shift in the manner of the appointment of judges. The NJAC Act sought to replace the collegium system by providing for a body comprising representatives from both the judiciary and the Centre to make recommendations for the appointment of judges to the higher judiciary.
The Supreme Court struck down the NJAC Act in October 2015 and held that the collegium system would continue. It, however, invited suggestions from the public and other stakeholders to tweak the MoP to improve the functioning of the collegium and ensure transparency.
The court then held a separate hearing on December 16, 2015, to consider the suggestions. It was during that hearing that the Centre sought to frame the new MoP.
Senior advocate late Anil Divan, speaking at a panel discussion organized by Vidhi Centre for Legal Policy and Campaign for Judicial Accountability and Reforms on August 31, 2016, had asked the Supreme Court to recall its order regarding the new MoP, saying the Centre was not cooperating with its drafting. The Supreme Court took up the issue in 2017.
In October 2017, a bench of justices AK Goel and U U Lalit said that though the Supreme Court fixed no time limit for the finalisation of the new MoP, the issue cannot linger on for an indefinite period. It issued a notice to the Attorney General to respond to the issue while hearing a petition of advocate RP Luthra.
The matter was subsequently listed before another bench, led by then CJI Dipak Misra-led bench, which recalled the order of Justices Goel and Lalit saying that the matter should not be handled on the judicial side.
A Supreme Court bench of justices Sanjay Kishan Kaul and KM Joseph took cognisance of the burgeoning vacancies in high courts on December 6 last year. The bench said that as on December 1, 2019, there were only 669 judges in 25 high courts against a sanctioned strength of 1,079.
Senior advocate Sanjay Hegde said the Supreme Court can consider putting out the entire correspondence on MoP between the government and CJI in the public domain. “The Supreme Court can always review its own order and can take appropriate action in the light of past experience.”