The seven-page letter, which the Supreme Court’s four senior-most judges made public Friday has emphasised the row between the Apex Court and the government over finalising the Memorandum of Procedure (MoP). The four judges expressed displeasure over delays in finalising the MoP and observed that the government’s “silence” on the matter meant it had been accepted.
The MoP laws down the procedure to be followed in appointment of judges in the higher judiciary and while it came into existence in 1993, plans to revise the existing MoP have been stalled after differences between the SC and the government. The MoP was laid down on the directions of the SC in the Second Judges Case of 1993 (Supreme Court Advocates-on-Record Association and Another versus Union of India), wherein a nine-judge Constitution Bench devised the Collegium system of appointments.
The letter observed that the MoP was finalised and sent by the “then Hon’ble the Chief Justice of India to the government of India in March 2017”. “The Government of India has not responded to the communication and in view of this silence, it must be taken that the Memorandum of Procedure as finalized by the Collegium has been accepted by the Government of India on the basis of the order of this Court in Supreme Court Advocates-on-Record-Association (Supra),” the letter stated.
The letter also mentions an SC order dated October 27, 2017. “We deem it proper to address you presently with regard to the Order dated 27th October, 2017 in R.P. Luthra vs. Union of India to the effect that there should be no further delay in finalizing the Memorandum of Procedure in the larger public interest,” the letter stated.
On October 27, while hearing a petition filed by lawyer R P Luthra, who had challenged the appointments made to the higher judiciary in the absence of the revised MoP, a bench of Justices A K Goel and U U Lalit had issued notice to the Centre and directed the presence of Attorney General K K Venugopal. The development came as a surprise as it meant that the SC had taken up the matter, which till then was being dealt with on the administrative side, on the judicial side.
The Justices had said: “We need to consider the prayer that there should be no further delay in finalisation of MoP in larger public interest. Even though no time limit was fixed by this court for finalisation of the MoP, the issue cannot linger on for indefinite period.” While the order raised eyebrows and a three-judge bench headed by Chief Justice of India Dipak Misra recalled the same on November 8, 2017, observing that “these are not matters to be taken up on the judicial side like this”. The recall order underscored the long-running feud between the legislature and the judiciary over the appointment of judges in the higher judiciary.
While observing that it was “difficult to understand” how any other bench could have dealt with the matter. “The Government of India has not responded to the communication and in view of this silence, it must be taken that the MoP as finalised by the Collegium has been accepted by the Government of India on the basis of the order of this court… There was, therefore, no occasion for the bench to make any observation with regard to the finalisation of the MoP or that, that issue cannot linger on for an indefinite period,” the letter stated.
Allegations of corruption and other undesirable practices involving some judges has brought the Collegium system devised by the Supreme Court under the scanner. The government had made clear its intention to change the system — and in December 2014, it replaced the Collegium system of appointments with the National Judicial Appointments Commission (NJAC), which sought to give politicians and civil society the final say in the appointment of judges to the higher judiciary.
In October 2015, a five-judge Constitution Bench struck down the Constitution (99th Amendment) Act and the NJAC Act, which had proposed that appointments to the higher judiciary should be done by a six-member body headed by the Chief Justice of India, and including two seniormost SC judges, the Union Law Minister and two “eminent” selected by a panel including the Prime Minister, the CJI and the leader of the largest Opposition party in the Lok Sabha.
The court ruled that the political executive could not be given any hand in the process of appointment of judges, and that the 20-year-old collegium (made up of the five seniormost judges of the Supreme Court) system would continue. Justices J S Khehar, MB Lokur, Kurian Joseph and Adarsh Kumar Goel had declared the NJAC Act unconstitutional while Justice Chelameswar upheld it.
In December 2015, the SC instead asked the government to “finalise the existing Memorandum of Procedure (MoP) by supplementing it in consultation with the Chief Justice of India”.