Judicial Independence

Selection procedure for judges key factor in SC crisis

judges-presser-arvind-jain The four Supreme Court judges during their press conference | Arvind Jain

The long-pending Memorandum of Procedure (MoP) for appointment of judges to the Supreme Court and the High Courts is an important reason why four senior-most judges of the apex court decided to go public with their grievances with regard to administration of the court on Friday.

The four judges—Justices J. Chelameswar, Ranjan Gogoi, Madan B. Lokur and Kurian Joseph—feel that the Supreme Court has ended up delaying the MoP further through the manner in which it has dealt with a petition questioning the delay in finalising the procedure for appointment of judges.

The four judges are of the view that since the court has finalised the MoP and sent it to the Centre, and the government has maintained silence on it, the MoP should be deemed final. The judges, had in a letter they wrote to Chief Justice of India Dipak Misra two months back, raised the issue.

The judges questioned assigning of the R.P. Luthra versus Union of India case to a bench of Justices A.K. Goel and U.U. Lalit, when the original case pertaining to the National Judicial Appointments Commission—which ended in the Supreme Court scrapping the law for NJAC as being unconstitutional and concluding that the MoP be redrafted—had been dealt with by a Constitution Bench.

The bench comprising Goel and Lalit had in October 2017 sought a response from the Centre, issuing a notice to the attorney general, on the MoP.

The bench had passed an order to the effect that there should be no further delay in finalising the MoP in the larger public interest. However, a special three-judge bench, headed by the CJI, recalled the order of the two-judge bench on November 8.

“When the Memorandum of Procedure was the subject matter of a decision of a Constitution Bench of this Court in Supreme Court Advocates-on-Record Association and Anr. versus. Union of India [(2016) 5 SCC 1], it is difficult to understand as to how any other bench could have dealt with the matter,” the four judges said in their seven-page letter.

The four judges are also of the view that since the collegium of five judges had finalised the MoP and sent to the Centre in March 2017, and the government has not responded to the communication, “... in view of this silence, it must be taken that the MoP as finalised by the collegium has been accepted by the Government of India on the basis of the order of this Court.”

They feel there was no occasion for the bench to make any observation with regard to the finalisation of the MoP. They also said that the issue cannot linger on for an indefinite period.

Any issue with regard to the MoP should be discussed in the Chief Justices' Conference and by the full court, the judges said. “Such a matter of grave importance, if at all required to be taken on the judicial side, should be dealt with by none other than a Constitution Bench,” they said in the letter.

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