New Delhi: The Modi government has written to the Supreme Court four times in the past seven years, asking it to redraw the Memorandum of Procedure (MoP) to have more transparency in the selection process of judges. However, the top court has responded to only one letter till date, ThePrint has learnt.
The MoP is a rulebook followed by the judiciary and the government to appoint judges to the apex court and high courts. It has been at the centre of a controversy in the past few years, with the central government claiming the appointment procedure laid down in it gives primacy to the “opaque” collegium system.
The moot point in all these letters, which includes the recent one sent by Union Law Minister Kiren Rijiju in January this year, is the top court’s December 2015 order in which a five-judge bench had asked the central government to finalise the MoP by supplementing it with additional guidelines to bring more transparency in appointments, in consultation with the Chief Justice of India (CJI).
Rijiju’s letter expressed concern over the manner in which the top court has not dealt with the issue of appointments on the administrative side, but has pursued it through judicial intervention. “It does not appear to be reasonable and justifiable that, while the matter is pending on the administrative side, to pursue such undecided matters on the judicial interventions may create issues,” the letter stated.
ThePrint has seen all the letters written by the government between 2016 and 2023.
The Supreme Court’s December 2015 order was a sequel to an October 2015 verdict, which struck down the National Judicial Appointments Commission (NJAC). The five-judge bench had ruled with a 4:1 majority that NJAC was “unconstitutional” and violated the “basic structure of the Constitution”.
The NJAC Act passed by Parliament in 2014, sought to replace the collegium system of appointing judges with the NJAC, allowing for government say in the matter.
Running into 1,000 pages, the majority opinion of the 2015 judgment was penned by former Chief Justice of India, Justice J.S. Khehar, who headed the bench, with separate concurring opinions written by Justices Madan B. Lokur, Kurian Joseph, and A.K. Goel. Justice J Chelameswar had been the only dissenter on the bench.
Following this pronouncement, the bench held open-court deliberations and finally left the task of amending the MoP to the central government. The December 2015 order also said that the CJI’s decision on modifying the MoP would be based on the unanimous view of the collegium comprising the four senior-most judges after him.
Subsequently, after due diligence the government sent a draft MoP to the then CJI in August 2016. A response to the same was sent only in March 2017 by the then CJI, Justice Khehar. In the reply, Justice Khehar mentioned about the extensive discussions he held with his collegium members on the suggestions made by the government.
After due consideration, the collegium accepted minor modifications in the MoP. However, the letter specifically noted that the issues “which are not covered in the MoP, and changes which may become necessary in the future, would be considered” later.
Amendments made to the MoP
According to sources in the know of the developments, two minor amendments were made to the MoP in 2017, with regard to appointment of lawyers as judges. The revised MoP introduced two criteria for selection of candidates from the legal community for HC judgeship. First, an advocate should be in the age group of 45 to 55 and second the net average annual professional income of the lawyer for the previous five years should be Rs 7 lakh and above.
“The March 2017 letter did not close the possibility of further deliberations on amending the MoP. Rather, it allowed the government to raise the issue in the future,” one of the sources quoted above said.
The second time the government approached the top court was in July 2017. This was soon after two judges highlighted the need to revisit the process of selection of appointment of judges to the constitutional courts. Justice (since retired) Chelameswar and former CJI Ranjan Gogoi made the observations, while being part of a seven-judge bench that heard contempt proceedings against a sitting HC judge, Justice C.S. Karnan.
In the July 2017 letter written to the top court’s registrar general, the then Union Law Minister Ravi Shankar Prasad spoke of building an institutional mechanism, which he said, “is necessary for fulfilling the criteria of appropriate procedure for making assessment and transparency as mandated in the Supreme Court judgment (of December 2015)”.
Shankar said the need for a robust evaluation process by setting up an evaluation committee was further reinforced by the top court in its judgment in the Karnan case.
It also noted that, though the top court had established a secretariat, the same was limited to maintaining a database only relating to the record of district judiciary.
Such a set-up, the letter added, would not in any way contribute meaningfully towards assisting the collegium in identification of all eligible candidates. This letter did not yield any response from the top court.
The need to improve appointment system
Meanwhile, the Supreme Court on the judicial side kept delivering orders on appointments. In March 2018, a two-judge bench of Justices A.K. Goel and U.U. Lalit (who retired as a CJI last year) brought out deficiencies in the system and emphasised the need to improve the appointment process.
Later, in April 2021, a three-judge bench laid down additional timelines in respect of time taken in processing of collegium’s proposal by the government and also gave a judgment in the matter of appointment of retired judges.
This prompted the government to once again prepare draft guidelines to supplement the existing MoP, in consonance with the December 2015 verdict. No response on this communication, too, has been received from the Supreme Court, sources told ThePrint.
The latest letter by Rijiju has reiterated the need to supplement the MoP, to have a search-cum-evaluation committee and a structured secretariat. “Selective application of certain parameters laid down through judicial pronouncement, which are yet to be agreed upon in the administrative process of appointment of judges to the constitutional courts, may lead to selective piecemeal supplementation of MoP,” the letter has said.
(Edited by Richa Mishra)