Cover Story

Judiciary-Executive Face-Off 2.0 Post-NJAC Fiasco, Impasse Over Mamorandum of Procedure

It has been now over six months since the process for drafting a fresh Memorandum of Procedure (MoP) was set in motion but it still remains to be finalized courtesy persistent stand-off between the Supreme Court’s collegium and political executive over certain contentious clauses as formulated by the latter to which the former is vociferously opposed to.  Amidst all this, one speculates if the executive government by doing so is now attempting to achieve what it earlier could not after its legislations providing for NJAC got judicially shattered.

During last week of May this year, the Supreme Court’s collegium rejected and returned the draft new Memorandum of Procedure (MoP) i.e. the revised document which would tend to govern future appointments and transfers of members of the Higher Judiciary as prepared and submitted to it by the Central Government earlier this year in pursuance of December 16, 2015 order of the Apex Court.

Pertinent to mention that while declaring “unconstitutional and void” both Constitution (99th Amendment) Act, 2014 as well as its enabling legislation viz. National Judicial Appointments Commission (NJAC) Act, 2014 by a 4:1 majority on October 16, 2015, the Constitution Bench of the Supreme Court had also agreed to consider the incorporation of additional appropriate measures, if any, for an improved working of the “collegium system”.
It was indeed after hearing of the same as held in the month of November 2015 that the issue of framing fresh MoP came to the fore after a whooping number of suggestions for improving the collegium system were received by the Court apropos issuance of public notice in this regard.
It was also at this juncture that Mukul Rohatgi, learned Attorney-General for India strongly asserted that the formulation of the MoP is an administrative responsibility which fell in the executive domain by submitting that even the Nine-Judge Bench had left the task of drawing up of the MoP to the Government of India (see Box)
Finally, the Supreme Court ordered that the Government may finalize the existing MoP by supplementing it in consultation with the Chief Justice of India (CJI) who will take a decision based on the unanimous view of the collegium comprising the four seniormost puisne Judges of the Apex Court. It was also laid down that while doing the needful certain factors viz. Eligibility criteria, Transparency in the Appointment Process, Secretariat establishment, Complaint mechanism and other miscellaneous matters be also taken into consideration.
Here it merits due reference that since over more than two decades, the appointment of members of the higher judiciary is based on a “Memorandum of Procedure for Appointment of Judges of Supreme Court and High Courts” as prepared in pursuance to the Supreme Court judgment dated October 6, 1993 (Second Judges’ case) read with Advisory Opinion of the Apex Court delivered on October 28, 1998 (Third Judges’ case).
Under this mechanism, which is commonly known as the ‘collegium system’ , the process of initiation of proposal for appointment of a Judge in a High Court rests with the Chief Justice of the concerned High Court and for appointment of a Judge in the Supreme Court, the same rests with the CJI. The existing MoP was drawn on 30th June, 1999.
After getting the news that the draft MoP as prepared by the Government has been submitted to the Supreme Court/CJI in late-March this year, the author of this cover story in order to peruse the official text of the same preferred an RTI plea with the Department of Justice (DoJ) seeking copy of the same which in its reply while denying the same unequivocally mentioned that as the revised MoP is still under finalization in consultation with the CJI as per the Supreme Court order dated 16-12-2015, hence it is not possible at this juncture to give a copy of the draft MoP.
One indeed wonders what prevents the ruling elite from disclosing its draft MoP in public domain ? Ideally, there ought not be any ‘veil of secrecy’ over the same. The civil society in general and the entire judicial/legal fraternity in particular is fully entitled to be informed about the intentions of the incumbent Modi Sarkar in this regard more particularly as the ruling BJP has promised a lot on the front of Judicial Reforms in its election manifesto during the General Elections-2014.
Be that as it may, in view of the denial of the copy of draft MoP under the RTI, one can only take into consideration what has been disseminated via media reportage about its content. First and foremost, a clause in the same provides primacy to the executive government in rejecting any recommendation of the collegium without ascribing any reasons, on the ground of “national security”, perhaps whose interpretation is going to be imminently vague.

Further, it does not enable re-consideration of a rejection by the Government even if the collegium reiterates its earlier recommendation. This is in sharp contrast with the prevalent convention/practice that a reiterated recommendation if submitted, of course by the collegium without any dissent, is binding upon the Government.
Here it is also noteworthy that amidst the prevalent impasse, probably in a first of its case, the incumbent ruling dispensation has very recently rejected a recommendation of the Supreme Court collegium for appointment of a High Court Chief Justice for the second time. However,the Government has asked the collegium to again re-consider its decision as at least two sitting Supreme Court judges, who are believed to have worked with the Judge in question, have expressed serious reservations over his proposed elevation as the Chief Justice.
Next, reportedly there is mention in the draft MoP regarding introduction of ‘merit-cum-seniority’ as the sole criterion for elevation of judges. While the Government advocates that merit of a candidate be given primacy over seniority, the judiciary wants the MoP to rather re-christen the same as ‘seniority-cum-merit’ for the reasons best known to it. Also, the top judiciary has reportedly rejected the Government’s suggestion to set a cap of 10% or a maximum of three senior advocates who can be elevated directly from the Bar as Supreme Court Judges.

Pertinent that in over six and a half decade history of the Apex Court, almost all Judges haveprimarily come from the category of Chief Justices or seniormost Judges of the High Courts. Only about half a dozen including three incumbent Judges viz. Justices RF Nariman, UU Lalit and recently elevated L Nageswara Rao have got the distinction of being directly appointed as the Supreme Court Judges.

Also the draft MoP envisages a three-member Secretariat comprising two retired judges and one eminent person for the Supreme Court as well as for each High Court which would possibly screen the list of candidates to be brought before the respective collegiums. Certainly, the same has too not found favour with the judiciary as it desires such a Secretariat only for collecting data about the proposed appointees and not to prepare a shortlist for the appropriate collegiums.
Another bone of contention is upon a proposal in the draft MoP that it shall be open for all the Judges of the Court, the Attorney-General for India and the Advocate General(s) for the State(s) to recommend to the appropriate collegiums(s), the names of suitable advocates who, in their opinion, fulfil the eligibility criteria and could be considered for appointment as Judges.
Perhaps there might be certain more areas of disagreement between the judiciary and the executive with regard to the draft of revised MoP which albeit is being termed as supplemental (and not as a substitute) to the process contemplated through the Second Judges’ case (1993) and Third Judges ‘ case (1998) as well as the judgment of the Supreme Court in the main NJAC case (October 2015).
Now post-rejection coupled with return of draft MoP by the Supreme Court collegium, all eyes are upon the next move of the Modi Sarkar in this regard. Reportedly, it has now referred the matter to AG Mukul Rohatgi so as to prepare a point-by-point rebuttal while giving reasons why the collegium’s rejection of the draft is not acceptable to the Government.
Incidentally, Rohatgi was also instrumental in preparation of revised MoP although this whole exercise continues to be carried out under the aegis of a Group of Ministers (GoM) headed by veteran BJP leader and Union External Affairs Minister, Sushma Swaraj. It would be highly appreciable on the part of the Government if during the forthcoming Monsoon Session of the Parliament it brings this issue in the Parliament so as to endeavour eliciting political consensus over formulation of the MoP considering all political parties have been vehemently disapproving the extra-constitutonal collegium system.
One more interesting point, which has been seldom reported, merits due reference here. Article 124(2) as well as Article 217(1) as originally incorporated in our Constitution respectively provide that every Judge of the Supreme Court/ High Court shall be appointed by the President by warrant under his hand and seal “ after consultation with……………”.
One ought to scrupulously notice that the word used is ‘after’ and not ‘in’, which unfortunately used to be read when the Judiciary itself assumed the dominant and pivotal role in the appointment of members of the higher judiciary over two decades back via laying down the proposition of “collegiums” mechanism.
Pertinent that six years ago in 2010, a Public Interest Litigation (PIL) was filed by a registered Trust seeking review of such system put in place by the Supreme Court by contending, inter alia, that there is no mention of ‘collegium’ in our Constitution and the word “consultation” used in Article 124(2) cannot be read as “concurrence”. Even if the same is still to be regarded so, it must be only after due Amendment in the Constitution.
Initially a two-Judge Supreme Court Bench referred the issue to a larger Bench but in January 2013, a 3-Judge Bench headed by the then CJI, Justice Altamas Kabir dismissed the same notwithstanding that the contentions of the petitioner were also ostensibly supported by GE Vahanvati, the then Attorney General for India. This substantiates the fact that since the Apex Court does not wish to weaken its ‘paramount role’ in higher judicial appointments hence it has always favoured the idea of maintaining ‘status quo’.
Here the author would once again strongly exhort the incumbent Modi Sarkar so as to seriously mull the exercise of an option regarding the President of India (of course, as advised by the Union Cabinet) sending a reference under Article 143(1) of the Constitution to the Supreme Court for due re-consideration of the ‘Second/Third Judges case(s)’ by a larger than Nine-Judge Bench of the Court so as to opine afresh over the conundrum surrounding the covert ‘collegium system’ vis-à-vis overt constitutional provisions relating to appointment/transfer of members of the higher judiciary.
One must recall that even the then 18th Law Commission of India in its 214th Report as submitted in November 2008 recommended that two alternatives are available to the Government of the day. One is to seek a re-consideration of the three judgments (First, Second and Third Judges cases) before the Hon’ble Supreme Court. Otherwise a law may be passed restoring the primacy of the CJI and the power of the executive to make the appointments.
Finally, it is highly hoped that the ongoing stalemate between the Judiciary and Executive over the issue of finalization of revised MoP is resolved soon as this tug of war between the two merely for assuming inter se one-upmanship is only severely affecting the due process of filling up of huge number of vacancies in the Higher Judiciary which are further piling up with passage of time. (See Box).

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