The draft Memorandum of Procedure (MoP), which was recently approved by an inter-ministerial group headed by External Affairs Minister Sushma Swaraj, has reached the Prime Minister’s Office. After the PMO’s approval, it would be sent to the Chief Justice of India for final approval, PTI reports
The Draft MoP, which intends to lay down the broad framework for appointment of Judges by the collegium, recommends that the Attorney General at the Centre and Advocates General in the states should have a say in recommending candidates for appointment and elevation of judges of the Supreme Court and High Courts. It also mandates that up to three judges in the Supreme Court should be from the Bar,
It proposes to establish a permanent secretariat for the collegium and a process to evaluate and deal with complaints against candidates. Besides, it mandates that a High Court should not remain without a Chief Justice for more than three months.
The MoP suggests that any dissent note to a recommendation be compulsorily be shared with the executive. This is necessarily to provide the existing collegium system with the much needed transparency that the Supreme Court had reprimanded it for lacking.
Collegium appointments have been decided to be kept out of the purview of the Right to Information Act, because of the apprehension that such a provision could lead to a flood of applications from aspirants and “interested parties” seeking file notings and other details.
With regard to promotion as the Chief Justice of High Court, the MoP suggests that while seniority should be kept in mind, evaluation of judgments delivered by a High Court Judge during the last five years and initiatives undertaken for improvement of judicial administration should be the yardstick for promotion.
It was on December 16, 2015, the Constitution Bench of the Supreme Court directed the Government to draft a new Memorandum of Procedure [MoP] for appointment of High Court and Supreme Court Judges. The Court had issued following broad guidelines for consideration:
The Memorandum of Procedure 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.
Transparency in the appointment process
The eligibility criteria and the procedure as detailed in the Memorandum of Procedure 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 Memorandum of Procedure 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.
In the interest of better management of the system of appointment of Judges, the Memorandum of Procedure may provide for the establishment of a Secretariat for each High Court and the Supreme Court and prescribe its functions, duties and responsibilities.
The Memorandum of Procedure may provide for an appropriate mechanism and procedure for dealing with complaints against anyone who is being considered for appointment as a Judge.
The Memorandum of Procedure 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.”