December.16.2015: The Supreme Court on Wednesday came out with a slew of guidelines to improve the collegium system of appointment of judges in the higher judiciary to make it more transparent and accountable by asking the Centre to finalise a memorandum of procedure (MOP) in consultation with the chief justice of India.
A five-judge constitution bench headed by Justice JS Khehar also asked the government to look into five key aspects: eligibility criteria, transparency in appointment process, setting up of Secretariat for management of selection process, mechanism to deal with complaints against those who are being considered for appointment and to look into miscellaneous issues.
The bench, also comprising Justices J Chelameswar, Madan B Lokur, Kurian Joseph and Adarsh Kumar Goel, said that the Centre may finalise the existing MOP by supplementing it in consultation with the CJI.
“In view of the above, the Government of India may finalise the existing MOP 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 senior most puisne judges of the Supreme Court,” the bench said.
“The MOP may indicate the eligibility criteria, such as the minimum age, for the guidance of the collegium (both at the level of the High Court and the Supreme Court) for appointment of judges, after inviting and taking into consideration the views of the state government and the
Government of India (as the case may be) from time to time,” it said.
For ensuring transparency in the appointment process, the bench said, “The eligibility criteria and the procedure as detailed in the MoP for the appointment of judges ought to be made available on the website of the Court concerned and on the website of the Department of Justice of the Government of India.”
The bench also noted that the MOP may provide for an appropriate procedure for “minuting the discussions including recording the dissenting opinion of the judges in the collegium while making provision for the confidentiality of the minutes consistent with the requirement of transparency in
the system of appointment of judges.”
The bench said that for better management of the system, the MOP may provide for establishment of Secretariat for each high court and the apex court and prescribe its functions, duties and responsibilities.
“The MOP may provide for any other matter considered appropriate for ensuring transparency and accountability including interaction with the recommendee(s) by the collegium of the Supreme Court, without sacrificing the confidentiality of the appointment process,” it said.
However, the bench clarified that the guidelines mentioned in its order were only broad suggestions for consideration and supplementing MOP.
The court passed the order after noting the submission of Attorney General Mukul Rohatgi that the MOP and introducing amendments therein, had always been prepared by the government in consultation with the president of India and the CJI.
The bench agreed to the suggestion of Rohatgi who had said that the same procedure would be adopted now, if the task was entrusted to the Executive.
The court also noted down the submissions of the AG who had noted that formulation of MOP was an administrative responsibility which fell in the executive domain and the apex court neither had expertise nor the wherewithal for proposing amendments in the existing MOP which was drawn on 30 June, 1999 by the government for improving the collegium system.
The court passed the guidelines after taking into account suggestions received from various stakeholders who had sent them on the website of the Ministry of Law and Justice.
“It is important to note that the compilation of the written suggestions placed before us was in the nature of a summary prepared out of approximately 11,500 pages of views expressed. We had a very challenging responsibility to embark upon and reflect, and thereafter, to sieve such of the suggestions as were likely to improve the collegium system,” the bench said.
“Only then would we be in a position to sponsor their introduction into the MOP for the appointment of judges of the higher judiciary,” it said.
Read the Full Judgment here-