On February 3, in the ongoing special Budget session of the Parliament, Lok Sabha members Prof. Sougata
The Minister of Law then provided that the government had sent back 18 proposals for reconsideration to the Supreme Court Collegium. While examining these government proposals, the Supreme Court Collegium had decided to reiterate 6 cases. Meanwhile, in 7 cases, the SC Collegium had desired updated inputs from the High Court Collegiums, and 5 cases have been decided to be sent back to High Courts for reconsideration.
The Union Law Minister then provided the existing Memorandum of Procedure for appointment of the judges of the Supreme Court of India and the High Courts. As has been provided in the answer, the appointment of Judges of the Supreme Court and High Courts is made under Articles 124, 217 and 224 of the Constitution of India and as per the procedure laid down in the Memorandum of Procedure (MoP) prepared in 1998 pursuant to the Supreme Court Judgment of October 6, 1993 (Second Judges case) read with their Advisory Opinion of October 28, 1998 (Third Judges case). As per the existing Memorandum of Procedure for appointment of Judges of High Courts, the Chief Justice of the High Court is required to initiate the proposal for filling up of vacancies of a Judge in a High Court six months prior to the occurrence of vacancies.
In his answer, Kiren Rijiju provided the Lok Sabha with details regarding the background of the formation of the Collegium system, the deficiencies that existed and changes that have been recommended by the Centre. As per the latest suggestion submitted by the government to the Supreme Court, the Search-cum-Evaluation Committee in respect of appointment of Judges in the Supreme Court and Chief Justices of High Courts should consist of a representative nominated by Government of India.
Background of the Collegium system
In order to replace the Collegium system of appointments of Judges of the Supreme Court and High Courts with a more broad-based, transparent, accountable appointment mechanism and to bring greater objectivity in the system, the Government had brought into operation the Constitution (Ninety-Ninth Amendment) Act, 2014 and the National Judicial Appointments Commission Act, 2014 w.e.f. 13.04.2015. However, both the Acts were then challenged in the Supreme Court and the SC,vide Judgment their dated October 16, 2015 declared both the Acts as unconstitutional and void.
The Collegium system as existing prior to the enforcement of the Constitution (Ninety-Ninth Amendment) Act, 2014 was declared to be operative. Hon’ble Supreme Court while hearing WP(C) 13 of 2015 in NJAC matter issued detailed Order on December 16, 2015 on supplementing the Memorandum of Procedure, and laid down that Government of India may finalize the Memorandum of Procedure by supplementing it in consultation with the Chief Justice of India. The Chief Justice of India were to take a decision based on the unanimous view of the Collegium comprising of four senior most pristine Judges of the Supreme Court. The order stated that they shall take the following factors into consideration such as eligibility criterion, transparency in the appointment process, secretariat, complaint mechanism and miscellaneous matter considered appropriate for ensuring transparency and accountability including interaction with the recommendees, the Collegium of the Supreme Court without sacrificing the confidentiality of appointment.
In pursuance of the above orders, the Government of India, after due diligence sent the revised MoP to Hon’ble Chief Justice of India on March 22, 2016 and the response of the Supreme Court Collegium on the revised draft MoP was received on May 25, 2016 and July 1, 2016. The views of the Government in response to the views of the SC Collegium was conveyed to the CJI on August 3, 2016. Subsequent comments of SC Collegiumon the views of Government on the draft MoP were received on March 13, 2017.
Thereafter, the Supreme Court in judgment dated July 4, 2017 in suo motu Contempt proceedings against a Judge of Calcutta High Court brought out the system’s failure of not providing an appropriate procedure for making assessment of the personality of the contemnor at the time of recommending his name for elevation as High Court Judge inter-alia highlighting the need to revisit the process of selection and appointment of Judges to the Constitutional Courts. The views of the Government on the relevant points was conveyed to Supreme Court of India vide letter dated July 11, 2017.
For a detailed analysis of the evolution of the collegium system, click here.
Reform Suggested by the Government
While sending the proposal for supplementation of MoP on the criteria fixed in Supreme Court order in W.P.(C) 13 of 2015 in NJAC matter, Government had made suggestions including the need for a Screening-cum- Evaluation Committee at the Supreme Court and High Court levels to assist the Collegiums of Supreme Court and High Courts, respectively. It was proposed that the Committees may screen and evaluate relevant material on the suitability of the prospective candidates and would act as a facilitator. The decision to make recommendations will continue to be exercised by the respective Collegiums of the Supreme Court and High Courts. However, the Supreme Court did not agree to set up such Committees.
In its recent communication dated January 6, 2023 to the Chief Justice of India, the Government has emphasized the need to finalize the MoP in view of various judicial pronouncements and inter-alia suggested that the Search-cum-Evaluation Committee in respect of appointment of Judges in the Supreme Court and Chief Justices of High Courts should consist of a representative nominated by Government of India. For appointment of Judges in the High Courts, the Committee should consist of a representative nominated by Government of India and a representative of State Government(s) under the jurisdiction of High Court as nominated by the Chief Minister(s).
The existing MoP stipulates that if the Chief Minister desires to recommend the name of any person, he/she should forward the same for consideration. However, since this has not been put in actual practice, the names recommended by the Chief Minister can also be received by the Search-cum-Evaluation Committee along with the names taken from senior Judges outside the Collegium and eligible candidates taken from the database (Judicial Officers and Advocates) as maintained by the proposed Secretariat.
As per the suggestion, the High Court Collegium may deliberate upon panel of names drawn up by the said Committee and recommend the names of most suitable candidates for appointment as Judges in the Supreme Court, Chief Justices and Judges of the High Courts.
The Collegium at appropriate level may address the above requirements of drawing up panel of eligible candidates from aforementioned sources and draw up their proceedings by rendering requisite reasons and thereafter send the proposal to the Government with relevant documents. The said Committees will be entrusted to prepare a panel of eligible candidates from which the respective Collegiums will make recommendation.The Supreme Court is yet to reply to this suggestion.
Vacancies in the Supreme Court and the High Court
The Law Minister provided that in the year 2021, 09 Judges in the Supreme Court and 120 Judges in the High Courts have been appointed and in the year 2022, 03 Judges in the Supreme Court and 165 Judges in the High Courts have been appointed. As on February 1, 2023 against the sanctioned strength of 34 Judges, 27 Judges are working in the Supreme Court and recommendations against 07 vacancies have been received from the Supreme Court Collegium recently.
In the High Courts, against the sanctioned strength of 1108 Judges, 775 Judges are working and 333 posts of Judges are vacant. Against these vacancies 142 proposals recommended by High Court Collegium are at various stages of processing and recommendations against 191 vacancies in the High Courts are yet to be received from the High Court Collegiums.
The complete answer can be read here.
What does the Supreme Court say?
In September 2022, a Supreme Court bench headed by CJI NV Ramana had censured the executive for “cherry-picking” the members of various tribunals, which are quasi-judicial bodies.
The Supreme Court has again and again reiterated that the collegium system is the law of the land and must be followed, observing that if people get to choose which law should be followed and which should not be, there would be a breakdown.
For past few weeks, unseemly remarks by the Kiren Rijiju and by Vice President Jagdeep Dhankhar in his maiden address to the Rajya Sabha on December 7 have opened new frontal attacks on both the Supreme Court and the Collegium System, too. Dhankar went as far as to sharply criticise the Supreme Court for scrapping the law passed by parliament to put in a place a new method of appointing judges.
On November 11, 2022, the apex court had issued a notice to the union law secretary on a petition filed over the delay in clearing the names approved by the Collegium for appointment as judges.
• ‘Comments against collegium not well taken’
On December 8, a three-judge bench –comprising Justices S.K. Kaul, Abhay S. Oka and Vikram Nath –heard the contempt petition filed by the Advocates Association Bengaluru in 2021 against the Union government for not approving 11 names even after the collegium reiterated them. The bench said that though there may be isolated instances where reiterated names were dropped, the government does not have a license to ignore the constitution bench judgment which said that collegium reiterations are binding.
Senior advocate Vikas Singh – who is the president of the Supreme Court Bar Association – referred to statements made Rijiju and Dhankhar about the collegium system during the hearing. “People in constitutional posts are saying [that the] Supreme Court does not have judicial review. That is basic structure. It is a little upsetting,” he said. “Tomorrow people will say basic structure is also not a part of constitution!” Justice Kaul had responded.
• ‘Memorandum of procedure finalised, government must follow it’
On December 8, the same above mentioned three-judge bench had also firmly disapproved the Union government’s view in the status report filed by the AG that the Memorandum of Procedure (MoP) for appointing of judges needs to be reconsidered. While the report referred to observations made by former Supreme Court judges Ranjan Gogoi and J. Chelameswar that the MoPneeded to be revisited, the bench said that the MoP has been finalised and the government cannot act as if there is no final MoP.
In regards to the Centre not approving the names of recommendations made, the Supreme Court bench comprising of Justices AS Oka and SK Kaul had expressed a deep sense of anguish at the Centre for sitting over Collegium’s proposals on judicial appointments and further went on to wonder if the recommendations are being withheld on account of Government’s discontent with the non-implementation of the National Judicial Appointments Commission. Justice Kaul also said that withholding the recommendations often frustrates the entire system. He pointed that many competent lawyers and judges are uncertain about accepting judgeship, due to the uncertainty involved.
Related:
69,768 cases are pending in Supreme Court end 2022 & 53, 51,284 in various High Courts: UoI
Collegium System is Law of the Land, Must Be Followed: Supreme Court to Centre
Collegium system & transparency of judicial appointments: a conundrun
Is the Centre overreaching itself in returning Collegium recommendations, again?
Six Members in the Supreme Court Collegium until May 13, 2023