New Delhi: For the last few months, the tussle between the judiciary and the government has intensified over the appointment of judges. one in letter On 6 January to Chief Justice of India DY Chandrachud, Union Law Minister Kiren Rijiju suggested that the government’s nominees for shortlisting judges of the Supreme Court and High Courts should be involved in the decision-making process.
Rijiju suggested the inclusion of a government representative in a “search-cum-evaluation committee” that would provide inputs on “suitable candidates” to the appointment panel or collegium. The suggestion is being made since the Memorandum of Procedure (MoP) regarding appointment of judges is still “pending”, the letter said.
In an earlier letter in August 2021, Rijiju asked To fix and supplement the existing MoP to formalize the appointment of Supreme Court Ad-hoc Judges.
But what is a memorandum of procedure? How was it prepared and why did it need to be revisited? Has the MOP been finalized or is it still under consideration? ThePrint explains.
What is MOP?
The MoP lists the rules and procedures for the appointment of judges to the Supreme Court and High Courts. It is a document made jointly by the government and the judiciary.
This process was developed through three Supreme Court decisions, popularly known as the three judge cases. these: SP Gupta Vs 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 decisions, the central government framed An MoP dated 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 website of the Department of Justice, provides detailed procedure for appointment Supreme court And high court judge, For example, this They say That all appointments of judges to the Supreme Court should be recommended by a Collegium, consisting of the Chief Justice of India and the four senior-most judges of the Supreme Court. It also states that in doing so, the CJI shall take into account the views of the senior-most judge of the Supreme Court, who comes as a recommender from the same High Court. After this, this recommendation is sent to the Central Government. The Law Minister will forward it to the Prime Minister, who will advise the President on the appointment.
need review
In October 2015, a five-judge bench of the Supreme Court struck down the National Judicial Appointments Commission (NJAC) by a 4:1 majority, following which the process of reconsidering the MoP began. NJAC was introduced to do away with the collegium. system, and instead put together a six-member committee to appoint judges to the Supreme Court and High Courts. Apart from the CJI and the two senior-most judges of the Supreme Court, the committee was to have a representative of the government – the Law Minister and two independent members.
Rejecting the NJAC, the court had accepted The mop needs “fine-tuning”. It had continued to hear the matter even after passing the judgement, “for steps to be taken in 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 To make it more transparent” and in line with societal needs, and in particular, to avoid the Fifth Judges case!
In December 2015 he said that the government could be the final cut The existing MoP “by supplementing it in consultation with the Chief Justice of India”. It had claimed that the CJI will decide on this revised MoP, based on the unanimous view of the collegium consisting of the CJI and the four senior-most judges of the Supreme Court after him.
a new opportunity
according to a December 2022 order of the apex courtThe government sent a revised MoP to the then CJI on 22 March 2016. The Supreme Court Collegium sent a revised draft of the MoP on 25 May 2016 and 1 July 2016. The order further states that the final view of the collegium was expressed in the MoP which was received by the government on March 13, 2017. As per reports, this is the final look rejected Every controversial clause to be included in the new MoP, including a clause that the government should have the power to reject any name for appointment as a high court judge on grounds of “national security”.
However, in a status report submitted to the Supreme Court on December 7 last year, the central government highlighted the need to “reform” the MoP. This was done following observations made by a seven-judge bench of the Supreme Court in a July 2017 decisionLaying down reasons for holding Justice CS Karnan, the then judge of the Calcutta High Court, guilty of contempt of court.
in a different but agreed opinion In this 2017 judgement, 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 in constitutional courts”. He wrote that there was “failure to appreciate the personality of the contemnor (Karnan) at the time of recommending his name for promotion”. The judges insisted that the appropriate mechanism for assessing the personality of a candidate being considered for appointment to a constitutional court should be decided after debate by all stakeholders – the Bar, the Bench, the State and civil society.
The December 2022 Status Report stated that “the Government was of the view that a fresh 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 official stand of the central government is that the MoP is yet to be finalised, the Supreme Court has made it clear that the existing MoP is final.
a report submitted The department-related Parliamentary Standing Committee on Personnel, Public Grievances and Law and Justice had also commented on the issue in Parliament in December last year. It added that the committee is “surprised to note that the Supreme Court and the government have failed to reach a consensus on the amendment to the MoP for appointment of judges to constitutional courts, though it has been under consideration for both for nearly seven years.” ,
Rijiju’s latest letter also states that the finalization of the MoP for appointment of judges is still “pending”.
However, during a hearing on December 8 last year, the Supreme Court Told The central government said the collegium system is the “law of the land” which must be followed “to the T”. It had also made it clear that “MOP is final”.
This does not mean that if the government suggests some changes or improvements in the MoP, then it cannot be considered, but till that happens, the existing MoP will continue to be applicable. The discussion took place during the hearing of a contempt petition against the central government for violating the time limit for judicial appointments.
(Edited by Smriti Sinha)