Exactly two months after it quashed the proposed National Judicial Appointments Commission (NJAC), the Supreme Court on Wednesday refrained from issuing any positive directive to improve the collegium system and left it to the Centre to consult the Chief Justice of India for drafting a new memorandum of procedure for judges’ appointments. Listing out “only broad suggestions for consideration”, a constitution bench led by Justice J S Khehar agreed with Attorney General Mukul Rohatgi that preparing a memorandum of procedure for appointments in the higher judiciary fell in the executive’s domain, and the nine-judge benches had also left the task to the government. The nine-judge benches in Second Judges and Third Judges case in the 1990s had accorded primacy to the Chief Justice of India in making judicial appointments so as to ensure independence of the judiciary while assigning to executive the bureaucratic task of drafting the memorandum of procedure in terms of its directions. On Wednesday, the five-judge bench also clarified that there has to be “faithful implementation of the principles laid down in the Second Judges case and the Third Judges case” in case the new memorandum is drafted. It connotes that the government will have no leeway to introduce any element of surprise in the memorandum since it will have to pass the CJI’s muster, besides conforming to other principles enumerated in the 1990s rulings. “The Government of India may finalise the existing memorandum of procedure by supplementing it in consultation with the Chief Justice of India. The Chief Justice of India will take a decision based on the unanimous view of the collegium, comprising the four seniormost puisne judges,” said the bench. The CJI and four seniormost judges comprise the collegium, which has been persistently criticised for being opaque and lacking guidelines. While quashing by 4:1 majority constitutional amendment and the proposed NJAC, which was to replace the collegium system, the bench had embarked upon the ancillary exercise of improving the collegium as three of the five judges on the bench also criticised the existing system. The Centre, state governments, lawyers’ bodies and petitioner lawyers such as Fali S Nariman and Anil Divan were heard by the constitution bench, which also comprised Justices J Chelameswar, Madan B Lokur, Kurian Joseph and Adarsh K Goel. The final order reaffirms the primacy of the CJI, and at the same time abstains from issuing directives that had to be binding also on the CJI and the four seniormost judges in the collegium. Further, the bench sought to strike a balance with suggestions relating to eligibility criteria, procedural transparency, a secretariat of collegium and complaint redressal mechanism, although underlining that additional measures in the new memorandum must come “without sacrificing the confidentiality of the appointment process” and only in terms of judgments in Second Judges and Third Judges cases. The new memorandum, the court said, may indicate certain eligibility criteria, such as minimum age of judges, and criteria for consideration along with the procedure to be made available on the website of the court concerned and on the website of the Department of Justice of the central government. On transparency, the bench said minutes of collegium meetings along with dissenting opinion by judges on names may be recorded “while making provision for confidentiality of minutes consistent with the requirement of transparency in the system of appointment”. For better management of the system of appointment of judges, the memorandum may provide for the establishment of a secretariat for each high court and Supreme Court and prescribe its functions, duties and responsibilities, said the court.
