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In a significant development, the Supreme Court today issued notice to the central government in an SLP pertaining to delay in finalising the Memorandum of Procedure (MoP) for appointment of judges to the higher judiciary.
A Bench of Justices AK Goel and UU Lalit heard the petition filed by advocate RP Luthra, before issuing notice to the Centre.
Luthra had initially approached the Delhi High Court, challenging the appointments made to various high courts on the ground that the MoP had not been finalised. He then assailed this decision before the Supreme Court.
While the Supreme Court agreed with the High Court on rejecting the challenge to the appointments, it did address the issue of delay of the finalisation of the MoP. The order states,
“However, 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.”
Reference was also made to Justice Karnan case, wherein Justices J Chelameswar and Ranjan Gogoi suggested the need to revisit the process by which appointments are made. The Court also noted,
“We also find substance in the submission that the MOP must provide for a mechanism so that appointments of regular Chief Justices of High Courts are not unduly delayed. No doubt, the process is to be initiated by the Collegium and proposal is expected to be so initiated before accrual of the vacancies so as to ensure that appointments take place by the time vacancies arise and that the arrangement of acting Chief Justices does not exceed one month, as stipulated in para 5 of the Memorandum of Procedure for Appointment (MOP) currently in force…”
Further, the Court has also noted in its order that the MoP should provide for a mechanism so that appointments of regular Chief Justices to High Courts are not unduly delayed.
The Bench also sought the personal presence of Attorney General KK Venugopal for the next hearing, while requesting Senior Advocate KV Viswanathan to assist the Court.
The Centre and the Collegium have long been at loggerheads over the finalisation of the MoP, ever since the Constitution Bench in the NJAC matter floated the idea of framing a new MoP. A year later, the Centre forwarded its recommendations to the Supreme Court.
In March this year, the Supreme Court had 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.
However, this month, the new Collegium headed by Chief Justice Dipak Misra reportedly resolved to formulate norms which determine the way judges are appointed to the higher judiciary. This move included assenting to the Centre’s recommendation of having a permanent secretariat, which will collate data on the track record of persons being considered for appointment.
The issue of delayed appointments has been around for a while. Last year, former Chief Justice TS Thakur had threatened to summon officials of the Prime Minister’s office, after the Centre’s lackadaisical approach in passing appointment files was brought to the fore.
Read the order: