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On, October 16, 2015, a Constitution Bench of the Supreme Court struck down the National Judicial Appointments Commission as unconstitutional. Subsequent to that decision, for the first time, the Court invited suggestions for improving the Collegium system. 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.
The MoP is a document which sets out the procedure for appointment of judges to High Courts and the Supreme Court. It was first prepared pursuant to the directions of the Supreme Court in the Second Judges case.
Since it is an exercise to be carried out by the government in furtherance of a Supreme Court judgment, it is merely a step for implementation of the Court’s judgment. In other words, it is not a right that the Executive has, but merely a task left to them to enforce a judicial order. The order of December 16 itself makes this clear:
“It was at this stage of our reflection, that the learned Attorney General made an impassioned submission, not in any obstructive manner, but as a matter of faithful assistance, suggesting that we should desist from pursuing the contemplated course of action. In this behalf it was pointed out, that the formulation of the Memorandum of Procedure was an administrative responsibility which fell in the executive domain.
..we were also informed by the Attorney General, that the MoP and amendments therein, had always been prepared by the Government of India in consultation with the President of India and the Chief Justice of India. This practice, we were informed, had been consistently adopted, in consonance with the directions contained in paragraph 478 of the Second Judges case.
In order to allay any fear that may be entertained by any of the stakeholders, it was submitted that the same procedure would be adopted now, if the task was entrusted to the executive. We are in complete agreement with the suggestion of the learned Attorney General.”
However, contrary to the submissions of the Attorney General on December 16, 2015, what the Centre did and continues to do baffled legal experts and commentators alike.
In a figurative tennis match between the two wings of the State, the MoP went back and forth with the Centre and the Supreme Court disagreeing on various aspects. The disagreement between the two was pronounced during the tenure of former Chief Justice of India TS Thakur.
In March this year, 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.
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.
Whatever be the factual position, the law as it currently stands does not entitle the Union to bargain with the CJI on the MoP.
Hence, it was indeed surprising that the Supreme Court did not re-open the NJAC case and haul up officials of the Ministry of Law and Justice.
This was precisely what late Senior Advocate Anil B Divan said at a panel discussion organised by Vidhi Centre for Legal Policy and the Campaign for Judicial Accountability and Reforms on August 31, 2016.
Divan was very categorical in his remarks, stating that the Supreme Court should recall its order by which it had left it to the Centre to finalise the MoP. He also said that the matter should be dealt with by the Supreme Court on the judicial side, given that the Centre was not co-operating with the drafting of the MoP. He said,
“It is a judicial order, recall that order.”
And now, a year and ten months later, a Bench of Justices AK Goel and UU Lalit has 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.”
As the old saying goes, better late than never.