Why Delay In Finalizing Memorandum Of Procedure? SC Seeks Explanation From Centre [Read Order]

• “The order of this Court (for formulation of a Memorandum of Procedure)  is dated 16th December, 2015 and thus more than one year and ten months have already gone by”


• “We need to consider the prayer that there should be no further delay in finalization of MOP in larger public interest”

                                                                --a bench of justices Adarsh Kumar Goel and U U Lalit said.

In a major development, the Supreme Court today issued notice to the Centre on a petition which brought to its notice the delay in finalizing the memorandum of procedure for appointment of judges to the Supreme Court and High Courts.

A bench of justices Adarsh Kumar Goel and U U Lalit also sought the presence of Attorney General K K Venugopal on the next date of hearing November 14,  on the petition filed by an advocate R P Luthra. Senior Advocate K V Viswanathan has been requested to assist the court

“We agree with the view of the High Court that there is no merit in challenge to the appointment of judges of this Court and the High Courts on the ground that the MOP was not finalized in terms of the decision of this Court in Supreme Court Advocate-on Record Association & Anr. v. Union of India, (2016) 5 SCC 1, para 1255. 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”, a bench of justices Adarsh Kumar Goel and U U Lalit said.

Luthra had questioned appointments being made to various High Courts and Supreme Court despite MoP not being finalized. But the HC had dismissed the petition after which he moved the SC.

The bench also said it found  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, in pursuance of judgment of this Court in Supreme Court Advocates-on-Record Association and Ors. v. Union of India, (1993) 4 SCC 441, para  478”, it said.

Since January last, the government and the apex court are trying to finalise the memorandum of procedure -- a document to guide appointment of judges to the higher judiciary.

While rejecting the National Judicial Appointments Commission Act, the Supreme Court had agreed to revise the memorandum of procedure to usher in more transparency in appointment of judges to the apex court and the high courts.

The new law had sought to overturn the over two decade old collegium system where judges appoint judges. It had sought say of the Executive in appointment of judges.

The national security and the secretariat clauses are part of the draft MoP which has been shuttling between the government and the collegium since March 22, 2016.

In its latest response in March to the revised draft of the document, the collegium has made it clear that it will have the last say in cases where its recommendation for appointment of a judge is returned by the government on the grounds of national security and public interest.