Prepare procedure, SC to Centre on judges appointment

New Delhi, Dec 16 (IANS) The Supreme Court on Wednesday directed the government to prepare a memorandum of procedure that would be followed by the apex court collegium in the appointment of judges to higher judiciary.

Pronouncing the order, the constitution bench headed by Justice Jagdish Singh Khehar said the government will prepare the memorandum of procedure in consultation with the Chief Justice of India (CJI) who in turn will undertake the exercise with the unanimous opinion of the five-member collegium.

“The government of India may finalise the existing memorandum of procedure by supplementing it in consultation with the CJI,” said the bench also comprising Justice J. Chelameswar, Justice Madan B. Lokur, Justice Kurian Joseph and Justice Adarsh Kumar Goel.

The order said the CJI will take a decision (on MoP) based on the unanimous view of the collegium comprising the four seniormost judges of the Supreme Court.

The collegium consists of the CJI and the four seniormost judges immediately following him.

While specifically saying that the MoP would spell the eligibility criteria, transparency in the appointment of judges, setting up of secretariat, and method of dealing with complaints, the court said the MoP may also provide for any other matter considered appropriate for ensuring transparency and accountability including interaction with the recommendees by the collegium of the Supreme Court.

However, in a note of caution, the court said it would be “without sacrificing the confidentiality of the appointment process”.

The court said the MoP may indicate the eligibility criteria including the minimum age for appointment of judges, after inviting and considering the views of the state or the central government depending on the court to which appointment was being made from time to time.

The eligibility criteria and the procedure as would be spelt out in the MoP for the appointment of judges ought to be made available on the website of the concerned court and on the website of the law ministry.

The apex court further said the MoP may also provide for an appropriate procedure for minuting the discussion (maintaining the minutes) 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 court favoured having a secretariat both in the apex court and the high courts prescribing its “functions, duties and responsibilities”. It would be for the better management of the system of appointment of judges.

The MoP, the court said, may provide for an appropriate mechanism and procedure for dealing with complaints against anyone who is being considered for appointment as a judge.

The court made it clear that the guidelines were only broad suggestions for consideration and supplementing the MoP for the faithful implementation of the principles laid down in the second judges case (1993) and the third judges case (1998).

The constitution bench on October 16 held unconstitutional and void the Constitution’s 99th amendment creating constitutional basis of the National Judicial Appointment Commission and the NJAC Act, 2014 for setting up the NJAC.

Curtains had come down on the collegium system on April 13, 2015, after the government notified the NJAC Act.

While restoring the collegium system, the court by its October 16 order invited suggestions for improvements in the functioning of the collegium and bringing transparency in the appointment of judges to higher judiciary.

After hearing the suggestions, including by the government, on improving the functioning of the collegium and making it transparent, the court had reserved its order on November 19.

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