Memorandum of Procedure in limbo as govt, top judges lock horns

The new Memorandum of Procedure – a fresh set of guidelines for making appointments to the higher judiciary – is stuck in limbo because of the lack of agreement between the Centre and top judges on three crucial clauses, a top official in the law ministry said.

There is unlikely to any progress till the members of the so-called collegium, the Chief Justice of India and the next four judges in order of seniority in the high court, resolve their own differences, added this person who spoke on condition of anonymity. The collegium appoints judges to the Supreme Court and also Chief Justices of the high courts.

The four senior most judges in the apex court after the CJI, Justices J Chelameswar, Ranjan Gogoi, MB Lokur and Kurien Joseph went public last month with their differences with the Chief Justice of India Dipak Misra. In a press conference on January 12, their expressed their unhappiness at his style of functioning and said critical cases were being allocated to junior judges. Since then, the CJI and the judges have met several times, but the issue remains unresolved. That impasse may put the MOP on hold at least till the current CJI Dipak Misra retires in October, experts said.

“The judiciary is most likely going to focus on resolving the differences within first before it can put up a united face and respond to the government on the MOP,” Sumathi Chandrashekharan, Senior Resident Fellow at Vidhi Centre for Legal Policy said.

On December 16, 2015, a constitution bench of the SC headed by Justice JS Khehar directed the government to finalise a new MOP in consultation with the CJI to replace the current one and listed a number of suggestions to improve the collegium system of appointment. The judgement stressed on the importance of revisiting the selection procedure for the senior judiciary.

The same bench had, on October 16 that year, struck down as “unconstitutional” the National Judicial Appointments Commission Act, which sought to end the two-decade-old practice of judges appointing judges through the collegium. The bench, in its December order, stressed on making the system more transparent and accountable.

The government started working on the draft MOP in early 2016 and began consultations with the judiciary but there is currently no convergence on three sticking points.

In a letter from the law ministry to the SC in July 2017, then secretary, justice, Snehlata Srivastava wrote to the registrar general of the SC Ravindra Mathiani acknowledging the differences. The government, she wrote, wanted to keep the reasons for rejecting a candidate’s selection on the grounds of “national security and overidding public interest” confidential and share it only with the CJI.

The letter also mentioned the two other issues of difference between the government and the Supreme Court.

The Supreme Court, for its part, was against creating a secretariat for vetting and clearing names for judges and forming a committee of judges who were not part of the collegium to screen complaints against sitting judges. It was also not in favour of having search and evaluation committees for selecting candidates.

A top official in the law ministry said that was the last communication between the two sides. The SC “has not even acknowledged that letter. Our position has not changed,” he added, speaking on condition of anonymity.

The government had cited the December 2015 judgement and another by Justices Chelameswar and Gogoi on July 4, 2017, in the suo motu contempt case against high court judge Justice CS Karnan.

“Obviously, there is a failure to make an assessment of the personality of the contemnor at the time of recommending his name for elevation. Our purpose is not to point fingers to individuals who were responsible for recommendation but only to highlight the system’s failure of not providing an appropriate procedure for making such an assessment,” Chelameswar and Gogoi said.

“What appropriate mechanism would be suitable for assessing the personality of the candidate who is being considered for appointment to be a member of a constitutional court is a matter which is to be identified after an appropriate debate by all the concerned – the Bar, the Bench, the State and Civil Society. But the need appears to be unquestionable,” they added.

Equipped with the observations, the Centre wrote to the Supreme Court registrar general saying: “It becomes critically important for the government to take the initiative towards making the appointment process transparent, fair and accountable.”

Experts said after the SC collegiums responds, the government may have to start the process of negotiating with it all over again. “For that, probably a new collegium will have to be in place,” a legal analyst who did not want to be named said.

The CJI’s office did not respond to attempts to contact him.