MEMORANDUM OF PROCEDURE

On December 16, 2015, a Constitution Bench of the Supreme Court, which had struck down the National Judicial Appointments Commission as unconstitutional, had left the task of preparing the Memorandum of Procedure (MoP) to the Central Government.

A year and three months later, the exercise has borne fruit after a long tug-of-war. The Supreme Court collegium has finalized the MoP for appointment of judges to Supreme Court and various High Courts.

After arriving at a consensus on Centre’s stand that “national security” ought to be part of the criteria to determine eligibility for appointment as judges, the collegium headed by Chief Justice J S Khehar and comprising Justices Dipak Misra, J Chelameswar, Ranjan Gogoi and Madan B Lokur has significantly dropped its reservation about setting up secretariats in the Supreme Court and each High Court to maintain databases on judges and assist the collegiums in the Supreme Court and the High Courts in selection of judges.

The collegium is of the view that the executive should have a veto on any candidate recommended by the collegium on the ground of “national security”, and that there should be an independent secretariat to deal with appointments and transfers.

Finalization of the MoP, which will be sent to the Centre for approval has raised hopes of speedy filling up of vacancies in High Courts, which are operating at below 60% of their sanctioned strength.

In many High Courts, court rooms have been shut because of lack of adequate number of judges. This is hampering disposal of cases, which adds to the backlog.

The members of the Supreme Court collegium held seven meetings and unanimously finalized the MoP after debating each clause and sentence of the new MoP. There were no other sore points except the national security clause and secretariat in the MoP that required resolution.

For the last one year, the draft of MoP was getting tossed back and forth between the Centre and the collegium with both sides refusing to budge over their stated positions on the national security clause which ostensibly gave veto power to the government to reject a name recommended by the collegium for appointment as judge. The collegium agreed with the Centre on the national security clause on the condition that specific reasons for application of the clause were recorded.

However, things started moving after Justice Khehar took over as CJI and the composition of the collegium changed, allowing it to meet the challenges on top of it.

Sanchayeeta Das

Legal Associate

The Indian Lawyer