As the SC, Centre play ping-pong over MoP, it is time for the Collegium to step up

In law, the government has no primacy in the appointment of judges yet it has succeeded on multiple occasions to frustrate the recommendations of the collegium. It appears, though, that what the government really wants is primacy — not just a consultative role — in the appointment of judges.

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ON the morning of January 16, a national daily headline read rather alarmingly: "Govt writes to CJI, wants its representatives on Supreme Court Collegium". This left everybody perplexed because the existing law on the appointment of judges to high courts and the Supreme Court does not allow government representation in the collegium.

Union Law Minister Kiren Rijiju was quick to clarify on Twitter that his letter was merely a follow-up to the directions of the Supreme Court when, while striking down the National Judicial Appointment Commission (NJAC) Act in 2015, it directed that the Memorandum of Procedure (MoP) of the Collegium be restructured. "How can a govt's nominee be part of the collegium?" the Minister wondered in his clarificatory tweet.

"Some people make comments without knowing the facts! The Constitution Bench of hon'ble SC itself had asked to restructure the MoP. Search-cum-Evaluation committee is envisaged for preparation of the panel of eligible candidates," the minister added.

Rijiju was responding to a tweet of Delhi Chief Minister Arvind Kejriwal, who had quoted a media report with the caption: "This is extremely dangerous. There shud (sic) be absolutely no govt. interference in judicial appointments."

The law minister's letter underlines that the government is an "important stakeholder in the process of appointment of judges in the Supreme Court and high courts" and, therefore, its views should also find a place when the panel of names of those eligible for appointment as judges to the constitutional courts is being set up.

 Also read: Stare down continues as SC Collegium recommends advocate for Karnataka High Court judgeship for unprecedented third time

It is important to flag that the Minister wrote the letter on January 6, the day the Supreme Court had listed a contempt petition against the Union Government for not appointing judges despite the collegium recommendations.

The Minister claims that his letter aligns with the order passed by a five-judge Constitution Bench on December 16, 2015, stating that the Union Government may finalise the existing MoP by supplementing it in consultation with the Chief Justice of India (CJI). As per the said decision, the CJI was to take a decision based on the unanimous view of the collegium, comprising the four senior-most judges of the Supreme Court.

As per the court's order, the MoP may indicate the eligibility criteria, such as the minimum age, for the guidance of the collegium (both at the level of the high court and the Supreme Court) for the appointment of judges, after inviting and taking into consideration the views of the state government and the Union Government (as the case may be) from time to time.

It also stated that the eligibility criteria and the procedure as detailed in the MoP ought to be made available on the website of the court concerned and the website of the Union Government's Department of Justice. Besides, the order stated that the MoP may provide for an appropriate procedure for minuting the discussions, including recording the dissenting opinion of the judges in the collegium while making provision for the confidentiality of the minutes, consistent with the requirement of transparency in the system of appointment of judges.

The order also stated that the MoP might provide for the establishment of a secretariat for each high court and the Supreme Court, and prescribe its functions, duties and responsibilities. In addition, it may also provide for an appropriate mechanism and procedure for dealing with complaints against anyone who is being considered for appointment as a judge.

Lastly, the order also stated that the MoP could provide for any other matter considered appropriate for ensuring transparency and accountability, including interaction with the recommendation(s) by the collegium of the Supreme Court, without sacrificing the confidentiality of the appointment process.

So the MoP was to be finalised on these broad parameters, and it is this order of the Supreme Court that the Law Ministry is banking upon.

Also read: Union Government versus Supreme Court Collegium: Turf war on judges' appointments enters crucial phase

Has the MoP been finalised?

The MoP is a document agreed to by the Executive and the collegium, indicating procedural guidelines for processing names for recommendations and their appointment by the President. It is reflective of the law laid down in the Second and Third Judges' cases.

After the Supreme Court's order in the NJAC case, the government on March 22, 2016, sent a revised MoP to the CJI. We do not know what this contained. It is, however, a matter of record that the collegium did send its response to the government's revised MoP on May 25, 2016. Yet again, we do not know what the response of the collegium was.

The Collegium sent its views on the MoP to the government once again, on July 1, 2016, and one last time on March 13, 2017. It is this last MoP which the Supreme Court claims to be final at its end, even though the government has been claiming otherwise.

It is disappointing that this final MoP is nowhere in the public domain. Nobody knows what the eligibility criteria — if indeed they have been listed — contain. By the same token, the MoP on the government's website doesn't reflect any eligibility criteria. That MoP perhaps is an old one.

The story, however, does not end there. During the hearing of the above-mentioned contempt petition recently, the Attorney General revealed that the MoP was yet to be finalised and that the ball now actually lay with the Supreme Court.

It turns out that when, in their judgment of July 4, 2017, in the Justice C.S. Karnan contempt case, Justices J. Chelameshwar and Ranjan Gogoi had highlighted the need to revisit the process of selection and appointment of judges to the constitutional courts, the government had used that opportunity to almost immediately send a communication on the subject to the Secretary-General, Supreme Court. The court, the government claimed, was yet to respond to that letter of July 17, 2017.

What, therefore, emerges out of this chain of communication is that while the Supreme Court believes its communication of March 13, 2017 is the final MoP, even though it is not in the public domain, the government holds the view that the MoP is yet to be finalised.

It must be noted that around the same time, the Union Government had reportedly made a suggestion to collegium that they would have the power to veto a name recommended by the collegium on the ground of 'national security'. The suggestion is outrageous having regard to the vagueness of the term. Nobody knows whether the MoP, which the collegium claims to be final or the MoP which the government follows contains any such power to veto the collegium's recommendation on the ground of 'national security'.

The Law Minister's latest letter to the CJI has to be seen in light of the facts stated above. It does, however, beg the question: what made the Law Ministry suddenly write a letter to the CJI seeking representation in a 'search-cum-evaluation committee', given that its last communication to the CJI was more than five years ago in July 2017?

Perhaps the government is trying to influence the contempt proceedings, which are going on against the Secretary, Department of Justice, for not clearing the collegium's recommendations. The Supreme Court has been taking the government to task for delaying the appointment of judges. Left with no option, the government is raking up the issue of the non-finalisation of the MoP.

Also read: Stalemate over judges appointments continues as Supreme Court deplores Executive's intransigence

Second and Third Judges' cases

The Executive had always respected the primacy of the judiciary in the appointments of the judges since the inception of the Constitution until former Prime Minister Indira Gandhi started meddling in judicial appointments.

In 1993, a nine-judge Constitution bench of the Supreme Court, in the Second Judges' case, categorically held that the opinion of the CJI, formed by way of a consultative process based on the views of senior judges, held primacy, and no appointment of any judge to the Supreme Court or any high court could be made unless it conformed with the opinion of the Chief Justice of India. 

The reason behind this interpretation was that the Chief Justice is best equipped to know and assess the worth of a candidate, and their suitability for appointment as a superior judge. It was also necessary to eliminate political influence even at the stage of the initial appointment of a judge.

As per the Second Judges' case, read with the Third Judges' case, the initiation of the proposal for appointment in the case of the Supreme Court must be made by the Chief Justice of India, and in the case of a high court, by the chief justice of that high court. The law laid down in the Judges' cases nowhere envisages the role of a search-cum-evaluation committee, that too with a government nominee on it.

Pertinently, the Third Judges' case in 1998 arose out of a Presidential Reference made to the Supreme Court under Article 143 of the Constitution. The Attorney General assured the court that the Union Government was not seeking a review or reconsideration of the judgment in the Second Judges' case, and that it would accept and treat as binding the answers of the court to the questions set out in the Reference.

The Second and the Third Judges' cases, read with the NJAC judgement, have equated the primacy of the CJI in the appointment of judges to the independence of the judiciary, which, in turn, is a part of the basic structure of the Constitution.

Any tinkering with this method of initiating the process of appointment of judges, both at the high courts and the Supreme Court, that too with a government's nominee on a search-cum-evaluation committee (yet to be formed), would require the review of the Second and Third Judges' cases, which are binding both on the government as well as on the collegium. If the government wishes to bring in legislation to allow its representation in the appointment of judges, that will then be a different matter altogether. Of course, the law will have to meet the test of the independence of the judiciary.

Even if it is accepted for the sake of argument that the formation of search-cum-evaluation committee is permissible within the existing law on judges appointments, the final call will still lie with the collegium. Who should comprise such a committee will be a matter for debate, and whether such a committee with the government's nominee on it will be tenable will be a matter for interpreting the existing law laid down on the appointment of judges in the Second and Third Judges' cases.

Also read: As CJI U.U. Lalit recommends his successor, Union Government signals it can cherry-pick from Collegium's recommendations

Is Union Government merely a post office?

The government's claim that it has been reduced to a mere post office and has no effective role in the appointment of judges is not quite right. Because the process goes like this: the high court collegium recommends a name; the Intelligence Bureau (IB) submits its report/inputs to the Union Government; thereafter, the Union Government sends its views to the Supreme Court. The Supreme Court Collegium then decides on the proposal sent by the high court collegium after taking into consideration the reports received by it from the state government, the IB and the Union Government.

If the Union Government has any reservations against the name recommended by the Supreme Court Collegium, it can ask for a reconsideration. The Supreme Court Collegium in that eventuality may decide either to reiterate the name or shelve the proposal. However, once a name is reiterated, the appointment ought to be made as a matter of healthy convention. But there is no denying that in this lengthy consultative process, the Union Government gets its fair share of say.

It appears, though, that what the government really wants is primacy — not just a consultative role — in the appointment of judges. It is restless because it wants the power to veto names recommended by the collegium. This, despite the fact that the NJAC Act was invalidated by the Supreme Court precisely for the reason that it had given veto powers to two members of the Commission, which comprised six members, with the CJI as its chairperson. The NJAC Act, thus, undermined the primacy of the CJI in the appointment of judges.

In law, the government has no primacy in the appointment of judges yet it has succeeded on multiple occasions to frustrate the recommendations of the collegium. For example, the collegium withdrew its recommendations to appoint advocates K.K. Paul and Amit Negi to the Kerala High Court and the Allahabad High Court respectively, despite earlier reiterating its recommendations for their appointment. And there is no dearth of examples to show how the government has segregated names of appointees, thereby disturbing the inter-se seniority of persons recommended by the collegium.

The non-elevation of Justice Akil Kureshi to the Supreme Court despite being one of the senior-most judges in the country is indicative of the fact that the Union Government wields enormous influence in the appointment of judges. This fact can also be gathered from what former CJI Gogoi has written in his memoirs, Justice for the Judge, in which he states that the Supreme court Collegium's recommendation to appoint the then Bombay high court judge, Justice Kureshi as the Chief Justice of Madhya Pradesh High Court was changed to the Tripura High Court on the basis of "negative perception flowing from certain judicial orders passed" by him.

It is thus baffling that the government keeps saying that its views should also find place in the appointment of judges. The fact of the matter is that its views are always considered by the collegium, and even accepted by the collegium many times.

Also read: Union Government is eroding judicial independence by its control over appointments

Collegium needs to step up

The collegium is accused of being non-transparent not just by the government but also by transparency activists. And there is merit in the accusation. Even after nearly three decades of the existence of the collegium system, people do not know the criteria followed by the collegium in picking individuals for judgeship. The MoP, which the Supreme Court claims to be the final at its end, has not even been made available in the public domain.

The present government, however, has no moral authority to accuse the collegium of being opaque when the government itself has been undermining the Right to Information (RTI) Act and also making appointments to the Information Commissions, Election Commission, and Lokpal, among others, without any show of transparency. However, if the collegium is to protect its own credibility, it must step up. It cannot allow the status quo to continue for its own legitimacy in the public sphere.

In my piece published in April 2021, I highlighted that in 2019, while holding the CJI office subject to the RTI Act, Justice Chandrachud held that for the RTI Act to be meaningful vis-à-vis the judiciary, the basis for the appointment of the higher judiciary must be defined and in the public realm. He gave a list of essential norms regarding judicial appointments, such as the basis on which the performance of a member of the Bar is evaluated for higher judicial office.

In the context of elevation of members of the Bar to judgeship, Justice Chandrachud said that what mattered was experience and specialisation in a domain, being in tune with evolving areas of litigation, the requirements of each court, the extent of pro bono work done, and so on.

The time is ripe now for the collegium to walk the talk and put in the public domain the MoP, which must include the criteria for selecting judges at the high court as well as for the appointment of high court chief justices and judges to the Supreme Court.