Government withholds information on the Memorandum of Procedure

In a big blow to the transparency, the Department of Justice, has turned down RTI application seeking information related to correspondence made between the Government and the Supreme Court/Chief Justice of India on the issue of Memorandum of Procedure (MoP), date on which last correspondence made with the Supreme Court of India regarding ‘MoP’ as on date, Certified copy of draft MoP sent to the Government by the Supreme Court Collegium in the month of March 2017, Complete details of file noting(s) generated in Department of Justice while dealing with the issue of MoP etc.


“The CPIO in his reply dated 15.02.2018 has stated that,

“The Supreme Court vide order dated 16.12.2015 regarding improvement in the Collegium system of appointments directed the Government to finalise the existing MoP by supplementing it in consultation with the Supreme Court Collegium. The revised MoP is still under finalisation in consultation with the Supreme Court Collegium. Hence, the information sought by you cannot be furnished at this stage”. 

It is a settled law that under the RTI Act, 2005, the information sought for can only be denied under the exemption clauses provided in section 8 and 9 of the Act. However, the CPIO has rejected the RTI application, lock, stock and barrel without citing any exemption clauses provided in the Act.

In State of U.P. vs. Raj Narain (1975) 4 SCC 428, Supreme Court held: “In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can but few secrets. The people of this country have a right to know every public act, everything, that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. The right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security. To cover with veil secrecy the common routine business, is not in the interest of the public. Such secrecy can seldom be legitimately desired. It is generally desired for the purpose of parties and politics or personal self-interest or bureaucratic routine. The responsibility of officials to explain and to justify their acts is the chief safeguard against oppression and corruption.”

It is pertinent to note that issue of MoP was flagged by the four senior most judges of the Supreme Court in their letter which they made public soon after the Press Conference on 12.01.2018. The letter inter-alia says subsequent to the decision of the Constitution Bench in Supreme Court Advocates-on-Record Association and Anr. vs. Union of India (NJAC case), detailed discussions were held by the Collegium of five judges (including CJI) and the Memorandum of Procedure was finalized and sent by the then Hon’ble the Chief Justice of India to the government of India in March 2017. The Government of India has not responded to the communication and in view of this silence, it must be taken that the Memorandum of Procedure as finalized by the Collegium has been accepted by the Government of India on the basis of the order of this Court in NJAC case.

The exercise of revisiting the existing MoP has initiated in view of the Supreme Court’s order dated 16.12.2015 in NJAC case, whereby Court accepted the submission of then Attorney General, that the Memorandum of Procedure and introducing amendments therein, had always been prepared by the Government of India in consultation with the President of India and the Chief Justice of India. It often comes out in public that Government is not cooperating with the Collegium in finalizing the new MoP.  It is now felt as fatal mistake on the part of five judge Constitution bench in NJAC case to leave it on the executive to prepare MoP.


“Interestingly two judge bench Consisted of Justice A.K. Goel and Justice U.U. Lalit vide order dated 27.10.2017 had issued notice to the Attorney General regarding delay in finalising  MoP, on the plea of a lawyer R P Luthra, who recently sought action against judges who held Press Conference terming as activity “anti-national”. Surprisingly the CJI brought forward the hearing, withdrew the case from that bench and listed the same before three judge bench comprising himself, Justice A.K. Sikri and Justice Amitava Roy. The case filed by Luthra was subsequently dismissed!”


Four judges in their letter have also highlighted the Order dated 27th October, 2017 in R.P. Luthra case to the effect that there should be no further delay in finalizing the Memorandum of Procedure in the larger public interest. When the Memorandum of Procedure was the subject matter of a decision of a Constitution Bench of this Court in NJAC case, it is difficult to understand as to how any other Bench could have dealt with the matter.


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