In setting a fixed timeline for the government for the process of appointment of judges, the Supreme Court, in its ruling on Tuesday, has essentially altered the Memorandum of Procedure (MoP) through a judicial order, and said the government must act on the names recommended for appointment within four months. The MoP does not prescribe a timeline for the Centre to forward the recommendations.
“This is another area of some concern as there have been many cases which have remained pending for long periods of time — though in view of certain queries posed in these judicial proceedings, the situation has now improved. We may only say that in normal circumstances, the total time period before names are forwarded to the Supreme Court Collegium should not exceed four months after the recommendations are made by the Collegium of the High Court,” said the Bench comprising Chief Justice of India S A Bobde, Justices S K Kaul and Surya Kant.
The MoP, the playbook agreed upon by the government and the judiciary on appointment of judges, is a crucial document as the Collegium system of appointing judges is a judicial innovation that is not mandated through legislation or text of the Constitution.
The MoP has evolved as the standard based on three SC decisions – the First Judges Case (1981), Second Judges Case (1993) and the Third Judges Case (1998) form the basis of a peer selection process for appointment of judges. However, in 2016, the MoP was re-negotiated, following the Supreme Court’s decision to strike down the constitutional amendment that brought in the National Judicial Appointments Commission (NJAC) that sought to change the system of appointments and give the government a foot in the door.
However, a judicial order upends the negotiations as an order of the SC is the law of the land binding the government. Last week, during another hearing on appointment of judges, Attorney General KK Venugopal told the court that the MoP will be followed for the appointment process but that it does not fix a timeline for the Prime Minister or the President, adding that they will act within a “reasonable period”.
As per the MoP, the High Court Collegium headed by the Chief Justice of the HC initiates the process of appointment of other judges. Once the recommendation is made, the opinion of state governments and the input from the Intelligence Bureau are sought. The recommendations are then processed by the central government in all manners, before they are sent to the Supreme Court Collegium.
The SC’s ruling comes in the backdrop of it repeatedly underlining that several names are pending with the government for months now, at a time when HCs are staring at over 40% vacancies.
In response, the Centre has said that of the 416 vacant posts, no recommendations have been made by HC Collegiums for 220 posts. However, the SC, in its ruling, has not set any deadline for HCs to initiate the process of appointments.
“When a permanent vacancy is expected to arise in any year in the office of a Judge, the Chief Justice will as early as possible but at least 6 months before the date of occurrence of the vacancy, communicate to the Chief Minister of the State his views as to the persons to be selected for appointment,” the MoP, published by the Department of Justice states.