A petition has been filed before the Supreme Court seeking directions to the Chief Justice of India and the Central government to finalise the Memorandum of Procedure (MoP) laying down the procedure for appointment of judges to High Courts and the Supreme Court

The plea filed by NGO Loka Prahari states that appointment of judges to constitutional courts should be based on the unanimous view of the Collegium taking into consideration factors mentioned in the top court's 2015 judgment in NJAC case.

The plea has also sought directions to bring the Collegium decisions within the purview of the Right to Information Act (RTI Act).

The matter came up for hearing on Monday before a bench of Justices PS Narasimha and Alok Aradhe when the former chose to recuse from the case.

Justice Narasimha said that he had appeared as an Additional Solicitor General in a similar case related to MoP.

The MoP was first drafted in June 1999 pursuant to the directions of the Supreme Court in the Second Judges case. It laid down the procedure to be followed under the Collegium system for appointing judges to the higher judiciary.

In 2015, the Parliament enacted the National Judicial Appointments Commission (NJAC) Act to mark a significant shift in the manner of the appointment of judges. The NJAC Act sought to replace the collegium system by providing for a body comprising representatives from both the judiciary and the Centre to make recommendations for the appointment of judges to the higher judiciary.

However, a Constitution Bench of the Supreme Court, on October 16, 2015, struck down the NJAC as unconstitutional for violating independence of judiciary. Subsequently, for the first time ever, the Court invited suggestions for improving the Collegium system of appointing judges with the object of ensuring greater transparency in judicial appointments. Based on the inputs received, the Court on December 16, 2015 passed an order by which it left the task of amending the Memorandum of Procedure (MoP) to the central government.

During the initial phase after the NJAC judgment, the MoP did not materialise due to disagreements between the Centre and the Collegium.

The disagreement between the two was pronounced during the tenure of former Chief Justice of India TS Thakur.

In March 2017, the Supreme Court unanimously rejected the recommendation of the Centre that they should have the power to reject any name for appointment as a judge of the high court for reasons of “national security”. Calls for a permanent secretariat to appoint judges were also rejected.

There were calls to take up the issue on the judicial side and this happened in October 2017 when a Bench of of justices AK Goel and UU Lalit decided to seek Centre’s response on the delay, stating in its order,

“…we need to consider the prayer that there should be no further delay in finalization of MOP in larger public interest. Even though no time limit was fixed by this Court for finalization of the MOP, the issue cannot linger on for indefinite period. The order of this Court is dated 16th December, 2015 and thus more than one year and ten months have already gone by.”

The order was passed in a petition by advocate RP Luthra but the case was subsequently pulled from that Bench and listed before a Bench headed by then CJI Dipak Misra who proceeded to recall the order passed by Justice Goel led Bench.

The new petition by Lok Prahari has now sought directions to the Chief Justice (on the administrative side) to make necessary changes to the MoP as mandated by the 2015 NJAC verdict.

The Central government's Ministry of Law and Justice should then finalise the MoP within a month after consultation with the CJI, the plea has sought.

As per the plea, the existing MoP suffer from serious flaws due to lack of transparency and objectivity affecting the quality and performance of judges of the constitutional courts and directly affecting the litigants' right to justice.

"Finalisation of the MoP for appointment of judges of constitutional courts at the earliest is necessary to ensure that it meets the requirement of the selection process ensuring that they possess four essential qualities of impartiality, fearlessness, transparency and purity mandated by the Constitution Bench in the case of Chief Election Commissioner and Election commissioners. This is evidently more necessary in the case of judges of Constitutional courts and especially, the Apex Court since their orders are final," the plea states.