Judges Appointment- Existing Memorandum Of Procedure (MoP) Is Final, Govt May Suggest Improvements : Supreme Court

While hearing a plea against Centre sitting over names reiterated by Collegium for judges' appointment, a Bench comprising Justices Sanjay Kishan Kaul, A.S. Oka and Vikram Nath stated that once the aspect of the MoP is settled by the judgment of a Constitution Bench of the Apex Court, the Union Government cannot get over the issue by referring to observations made by two judges, namely, Justices Ranjan Gogoi and J. Chelameshwar sitting in a 7-Judge Bench( in the suo motu case against CS Karnan)to justify the delay in making appointments.

In its note as handed over by the Attorney General for India, on behalf of the Union Government reference was made to the observation of the two judges, who had noted that some fine tuning might be required in the existing MoP. However, during the course of the hearing Justice Kaul reckoned -

"Once the collegium in its wisdom or as you would think in the lack of it had worked out the MoP there is no up and down that is to take place."

He added -

"The MOP issue is over. Now you say in a subsequent judgment 2 judges made some observations. Now is it logically to latch on to those observations of 2 judges when there is a Constitution Bench decision?"

Justice Kaul was of the opinion that the Govt can improve on the MoP but cannot re-agitate the issue of MOP that has been settled by a Constitution Bench judgment by relying on observation of two judges sitting in a 7Judges Bench.

The Judge further noted -

"The Government is not precluded from seeking some changes in MoP. That I acknowledge. There is an existing MoP. The Government may think some alterations are required...But that does not take away from the existing legal process."

Justice Kaul also clarified that the issue of MoP itself cannot be above the Constitution Bench judgment which had struck down the NJAC.

Justice Kaul was of the opinion that the Government harping on the issue of MoP looks like it is resorting to blame-game.

"Again, I am saying, 2 out of 7 judges observed that some fine tuning of procedure is required. You are entitled to write that...But in the meantime the collegium system coupled with the MoP is to be followed. ...What you are resorting to, sorry to say, is blame game."

Pursuant to the judgment of the Apex Court which struck down NJAC, in 2016, the Government had sent a revised MoP. In response to the same the Supreme Court collegium sent back the draft the same year. The final view of the collegium was expressed in the MoP which was received by the Govt. on 13.03.2017.

The Bench recorded in the order -

"We may notice that in the judgment from which the present contempt proceeding is arising in para 9 the aspect of MOP was settled in 2017...The timelines set out were also extracted in para 9....All this is required to supplement para 24 of existing MOP. ..

"We have endeavoured to emphasize to learned Attorney General, the undisputed legal position that the MoP is final. That this does not mean that if the Government suggests some changes or improvements in the MoP, that cannot be looked into but till that happens, the MoP as existing would apply".

"As far as Article 224A of the Constitution is concerned, the endeavour of the judgment dealing with that was only to give life to the provision as though it is part of the constitutional Scheme, it had really not been utilized, more so, in the prevailing scenario of existing vacancies. That matter is being dealt with in a separate matter. The Government has also endeavoured to put forth the steps taken to finalize the MoP by referring to a communication dated 18.08.2021. That would be a matter to be dealt with by the Chief Justice of India and the Collegium."

[Case Title: Advocates Association Bengaluru v. Barun Mitra And Anr. Contempt Petition (C) No. 867/2021 in TP(C) No. 2419/2019]

Citation : 2022 LiveLaw (SC) 1013

Headnotes

Judges Appointment- Collegium reiterations are binding - Supreme Court asks Centre to explain by reiterated names are sent back to the collegium- 10 names reiterated by the Supreme Court collegium sent back by the Central Government- SC asks Attorney General as to how under the Scheme of law prevalent, are reiterated names sent back -Refers to para 486, clause 5 of the second Judges case reported in 1993 (4) SCC 441- sending back a second time reiterated names would be in breach of this direction

Judges Appointment- Memorandum of Procedure is final- The final view of the collegium was expressed in the MoP which was received by the Govt. on 13.03.2017- The undisputed legal position that the MoP is final. That this does not mean that if the Government suggests some changes or improvements in the MoP, that cannot be looked into but till that happens, the MoP as existing would apply.

Judges Appointment- Delay in finalizing the appointments discouraging eminent lawyers from joining the bench-There has been reluctance on the part of the successful lawyers to accept the honour and what we have stated in our last order is out of the experience of not being able to persuade such eminent people to join the Bench with one factor largely weighing in with them apart from any other issue, i.e. the long prolonged process of appointment and putting their career on hold. Thus on one hand, they are making a monetary sacrifice to come on to the Bench in a larger cause of justice but in that process they do not want their life to be dragged into an uncertainty. This has also resulted in at times, persons withdrawing their consent who are recommended to be elevated

Judges Appointment - Supreme Court disapproves Centre splitting up collegium recommendation - When the recommendations are cleared by the Supreme Court, the seniority set out therein must be followed

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