Law Minister Kiren Rijiju’s suggestion to CJI DY Chandrachud on appointment of judges: The context and background, explained

Appointments playbook

The MoP is the official playbook agreed upon by the government and the judiciary on the appointment of judges. It is a crucial document that governs the collegium system of appointing judges.

Since the collegium system evolved through a series of ruling by the Supreme Court, and is not based on legislation, the MoP is the bedrock of the process of appointments.

Three decisions of the SC, the First Judges Case (1981), Second Judges Case (1993), and Third Judges Case (1998), form the basis of the peer-selection process for the appointment of judges.

Process of renegotiation

The MoP was sought to be re-negotiated after the SC on October 16, 2015 struck down the constitutional amendment that had brought in the National Judicial Appointments Commission (NJAC).

The NJAC, which was cleared by Parliament earlier that year, would have changed the system of appointment of judges to the higher judiciary, and given the government a foot in the door. The Act passed in Parliament had provided for a six-member panel, including the Law Minister and two independent persons, to appoint judges to the SC and the High Courts.

After the NJAC Act was struck down, the SC directed the government to finalise the existing MoP by supplementing it in consultation with the Supreme Court collegium, taking into consideration eligibility criteria, transparency, establishment of a new secretariat and a mechanism to deal with complaints against proposed candidates.

Draft MoPs were exchanged between the government and the collegium during 2015-17. A key point of contention was the inclusion of a “national security” clause that could thwart an appointment.

However, before the document could be finalised, the Supreme Court in a judgment observed that that “there is a need to revisit the process of selection and appointment of Judges to the Constitutional Courts.”

The SC observation came in a July 2017 ruling by a seven-judge Bench in a suo motu contempt proceeding against Justice C S Karnan, who was then a judge of the Calcutta High Court.

“This case, in our opinion, has importance extending beyond the immediate problem. This case highlights two things, (1) the need to revisit the process of selection and appointment of judges to the constitutional courts, for that matter any member of the judiciary at all levels; and (2) the need to set up appropriate legal regime to deal with situations where the conduct of a Judge of a constitutional court requires corrective measures — other than impeachment — to be taken,” Justice J Chelameswar, who was part of the Bench, said in a judgment written for himself and Justice Ranjan Gogoi, that concurred with the main judgment.

Incidentally, Justice Chelameswar was the lone dissenting judge in the 4-1 verdict of the five-judge Bench in the NJAC case of 2015.

Government’s stand

Officially, the government’s stand is that the MoP is “pending finalisation”.

Last year, the Department of Justice told the Parliamentary Standing Committee on Law and Justice that 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. The MoP is under finalisation by the Government in consultation with the Supreme Court Collegium.”

In its 123rd Action Taken Report presented to Rajya Sabha in December 2022, the Standing Committee said that it was “surprised to note that the Supreme Court and the Government have failed to reach at a consensus on revision of the Memorandum of Procedure (MoP) for appointment of Judges to the constitutional courts, though the same is under consideration of both for about seven years now”.

The Committee said that it “expects the Government and the Judiciary to finalize the revised MOP, which is more efficient and transparent, in terms of the Supreme Court’s observation…”

Law Minister’s suggestion

Rijiju’s “suggestion” to the CJI comes in the backdrop of an ongoing tussle between the government and judiciary on the issue of appointment of judges. The Supreme Court has initiated a contempt case against the government for not adhering to the timelines set out in the MoP and court rulings. Five names recommended by the collegium on December 13 for appointment as judges to the Supreme Court are pending with the government.