The seven-page letter written by Justice J Chelameswar and three other senior judges to Chief Justice of India Dipak Misra, which they made public Friday, has emphasised the row between the Supreme Court and the government over finalising the memorandum of procedure (MoP) for appointments in the higher judiciary. The judges have expressed displeasure over delays in finalising the MoP and observed that the government’s “silence” on the matter meant that a draft sent to it in March 2017 had been accepted. Parliament records, however, show the government has announced that it had communicated to the Supreme Court in July 2017 that the draft MoP needed “improvement”.
The MoP was formulated on the directions of the Supreme Court in the Second Judges Case of 1993 (Supreme Court Advocates-on-Record Association and Another versus Union of India); a nine-judge constitution bench devised the collegium system of appointments. Plans to revise the MoP have been stalled amid differences between the Supreme Court and the government.
“The Government of India has conveyed the need to make improvement on the draft MoP to the Secretary General of the Supreme Court vide letter dated 11. 07.2017,” Minister of State for Law and Justice P P Choudhary told Rajya Sabha in response to a question in the recent winter session of Parliament.
The judges’ letter to the CJI said, “… Detailed discussions were held by the Collegium of five judges (including yourself) and the Memorandum of Procedure (MoP) was finalised and sent by then 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 the silence it must be taken that the MoP as finalised by the Collegium has been accepted by the GoI…”
Minister Choudhary, however, had said on December 29 – to a question from Ambika Soni and T Subbirami Reddy on the “Status of Finalisation of MOP for the appointment of the judges” – that “GoI after due deliberations, proposed changes in the existing MoP and the draft MoP was sent to the CJI vide letter dated 22.03.2016. The response of the CJI thereon was received on 25.05.2016 and 01.07.2016. The views of the government were conveyed to the CJI on 03.08.2016. The inputs on the MoP of the Supreme Court Collegium were received from CJI vide letter dated 13.03.2017.”
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After that came the judgment in the Justice C S Karnan case, in which the SC “underlined the need to revisit the process of selection and appointment of judges to the constitutional courts”, Choudhary said. This, he said, was followed by the July 2017 letter to the secretary general of the Supreme Court.
R P Luthra case
In their letter to the CJI, the judges record their displeasure over the October 27, 2017, order of a two-judge bench in R P Luthra vs Union of India. The case pertained to delay in finalising the MoP and challenged the appointments made to the higher judiciary in the absence of the revised MoP.
On October 27, a bench of Justices A K Goel and U U Lalit had issued notice to the Centre saying, “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.”
The development came as a surprise as it meant that the SC had taken up at judicial level a matter that, until then, was being dealt with at an administrative level.
Taking exception to the order, the judges wrote to the CJI: “When the Memorandum of Procedure was the subject matter of a decision of a Constitution Bench in Supreme Court Advocate on Record Association and another vs Union of India… it is difficult to understand how any bench could have dealt with the matter… 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 decision of Justices Goel and Lalit was, however, recalled by a three-judge bench headed by CJI Misra 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 appointments in the higher judiciary.
Either side of NJAC
In November 2014, the government had mooted 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. The move was prompted by the failure of the collegium system to check allegations of corruption involving among judges.
But in October 2015, a five-judge constitution bench struck down the NJAC Act, which had proposed that appointments to the higher judiciary should be done by a six-member body headed by the CJI, and including two most senior 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 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, Lokur, Joseph and Adarsh Kumar Goel had declared the NJAC Act unconstitutional while Justice Chelameswar upheld it. In December 2015, the Supreme Court asked the government to “finalise the existing memorandum of procedure by supplementing it in consultation with the Chief Justice of India”.